Sajan S.A S/O M.K Appu vs Rajimol K.V D/O T.R Vijayan
2023 Latest Caselaw 887 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
     TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
                       RPFC NO. 20 OF 2023
 AGAINST THE ORDER IN MC NO.109/2018 OF FAMILY COURT, KOTTAYAM AT
                            ETTUMANOOR


REVISION PETITIONER/RESPONDENT:

          SAJAN S.A
          AGED 41 YEARS, S/O M.K APPU,
          SMITHA NIVAS HOUSE, KUDAVECHOOR KARA,
          KUDAVECHOOR P.O, VECHOORVILLAGE,
          VAIKOM TALUK, KOTTAYAM DIST, PIN - 686144
          BY ADVS.
          K.K.JAYARAJ NAMBIAR
          SIDHARTH J NAMBIAR


RESPONDENTS/RESPONDENTS:

    1     RAJIMOL K.V
          AGED 40 YEARS, D/O T.R VIJAYAN
          THEEYAMPARAMBIL HOUSE,
          KUDAVECHOORKARA, KUDAVECHOOR P.O,
          VECHOOR VILLAGE,VAIKOM TALUK,
          KOTTAYAM DIST, PIN - 686144
    2     SHREYA SAJAN (MINOR)
          AGED 11 YEARS, REPRESENTED BY MOTHER RAJIMOL K.V
          THEEYAMPARAMBIL HOUSE,
          KUDAVECHOORKARA, KUDAVECHOOR P.O,
          VECHOOR VILLAGE,VAIKOM TALUK,
          KOTTAYAM DIST, PIN - 686144
    3     SREDHA (MINOR)
          AGED 9 YEARS, REPRESENTED BY MOTHER RAJIMOL K.V
          THEEYAMPARAMBIL HOUSE,
          KUDAVECHOORKARA, KUDAVECHOOR P.O,
          VECHOOR VILLAGE,VAIKOM TALUK,
          KOTTAYAM DIST, PIN - 686144
          BY ADV AKHIL VIJAY
     THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RP(FC) NO. 20 OF 2023
                                        2


                              JUDGMENT

Dated this the 17th day of January, 2023

This revision petition has been filed under

Sections 397 and 401 of Code of Criminal Procedure Code

(hereinafter referred as 'Cr.P.C.') and under Section 19(4) of

the Family Court Act, 1984, challenging order in MC

No.109/2018 on the files of the Family Court, Kottayam. The

revision petitioner is the respondent in the above MC, who is

the husband of the 1st respondent herein and father of

respondents 2 and 3. The respondents herein are the original

petitioners in the above MC.

2. Heard the learned counsel for the revision

petitioner as well as the learned counsel appearing for the

respondents.

3. It is submitted by the learned counsel for the

revision petitioner that, the above MC filed in the year 2018

was allowed ex-parte as per order dated 30.08.2018, since

the revision petitioner failed to appear before the Family

Court. Therefore, it is submitted that, an opportunity may be

given to the revision petitioner to contest the matter on RP(FC) NO. 20 OF 2023

merits since he had a specific contention that the 1 st

respondent herein is employed and therefore she could not

claim maintenance.

4. Whereas, the learned counsel for the respondents

pointed out that, as per the narration in paragraph No.9 of

the order impugned, the revision petitioner appeared before

the Family Court on receipt of notice and he undertook to pay

Rs.7,000/- as per the endorsement made by him in M.P. No.

109 of 2018 dated 10.07.2018 and when the case was

posted for payment on 25.07.2018 he was absent.

Accordingly, he was set ex-parte.

5. Accordingly, the Family Court, acting on the

affidavit filed by the 1st respondent, granted maintenance to

the tune of Rs.4,000/- to the 1st respondent and Rs.3,000/-

each to respondents 2 and 3.

6. Although, it appears that the learned counsel for

the revision petitioner's plea to get the order set aside with

opportunity to the revision petitioner is impressive at the first

blush, it could be noticed that, in paragraph No.5 of the

revision petition, the revision petitioner admitted that after

passing the order impugned, on 04.05.2019 he had filed

application to set aside the ex-parte order along with petition RP(FC) NO. 20 OF 2023

to condone the delay and those petitions were dismissed on

07.06.2022 for non prosecution as there was no

representation for the revision petitioner. Thus, on appraising

the history of the case, it appears that the revision petitioner

not only absent before the Court on 25.07.2018, after

undertaking to pay interim maintenance at the rate of

Rs.7,000/-, he also not made use of the opportunity provided

by the Family Court, when he had filed petition to set aside

the ex-parte decree along with petition to condone the delay

in filing the said petition.

7. Thus, callous negligence on the part of the

revision petitioner is foreseeable in the matter of vigilantly

prosecuting the matter, despite he had opportunities as

discussed above.

8. It is relevant to note that, this revision petition

also has been filed with petition to condone the delay of 547

days after excluding 806 days in view of the decision of the

Apex Court in Suo Moto Writ Petition (C) No. 3 of 2020,

excluding the period from 15.03.2020 to 30.05.2022. Thus

this revision petition has been filed after 1353 days.

9. However, in the interest of justice, I am inclined

to set aside the order impugned, in order to provide one RP(FC) NO. 20 OF 2023

more opportunity to the revision petitioner, on payment of

cost of Rs.25,000/- (Rupees Twenty Five Thousand Only) by

the revision petitioner before the Family Court, within a

period of seven days from the date of appearance of the

parties before the Family Court and also on further condition

that, he shall clear the entire arrears at the rate of

Rs.2,000/- (Rupees Two Thousand Only) to the 1 st

respondent and Rs.3,000/- (Rupees Three Thousand Only)

each towards maintenance to the respondents 2 and 3, from

the date of the MC till this date, within a period of thirty days

from today. It is specifically made clear that, if the reivsion

petitioner fails to pay the cost and the arrears of

maintenance, as directed, the ex-parte order shall stand

revived and the Family Court can close the matter on

recording the same. If so, the respondents herein/petitioners

in the above M.C. can execute the ex-parte order to realize

the arrears, in accordance with law.

10. It is specifically ordered that, if payment of cost

and deposit of the arrears, as directed, are complied within

the stipulated time, the Family Court is directed to provide an

opportunity to the revision petitioner to file objection and to

contest the matter on merits and also dispose of the same RP(FC) NO. 20 OF 2023

within a period of two months thereafter. The parties shall

appear before the Family Court on 31.01.2023.

Registry is directed to forward a copy of this

order to the Family court for information and compliance

within seven days.

Sd/-

A. BADHARUDEEN JUDGE SK RP(FC) NO. 20 OF 2023

APPENDIX OF RPFC 20/2023

PETITIONER'S ANNEXURES :

ANNEXURE 1 TRUE COPY OF THE B DIARY IN M.C NO. 109/ 2018 ON THE FILE OF THE FAMILY COURT ETTUMANOOR ANNEXURE 2 TRUE COPY OF THE ORDER DATED 7-6-2022 IN CRL. M.P NO. 174/2019 IN M.C NO. 109/2018 ANNEXURE 3 TRUE COPY OF THE ORDER DATED 7-6-2022 IN CRL. M.P NO. 175/2019 IN M.C NO. 109/2018

RESPONDENTS' ANNEXURES : NIL