Kerala High Court
Jaseem @ Jaseem Kiliyan vs Shahima Jasmin on 2 August, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
MAT.APPEAL NO. 231 OF 2024
AGAINST THE ORDER DATED 03.01.2024 IN OP NO.208 OF 2021
OF FAMILY COURT, MALAPPURAM
APPELLANT/APPLICANT IN IA AND RESPONDENT IN OP:
JASEEM @ JASEEM KILIYAN, AGED 36 YEARS
S/O. KILIYAN PARAMBIL UMMER, KILIYAN PARAMBIL HOUSE,
KARUVAMBRAM POST, SANTHINAGAR COLONY, KIDANGIZHI,
MALAPPURAM, KERALA - , REPRESENTED BY POWER OF ATTORNEY
HOLDER, NISAR BABU, AGED 35, KUNHARU, PERUVANKUZHIYIL
HOUSE, DOWN HILL POST, CHEMMANKADAVU, MALAPPURAM -
679519, PIN - 676123
BY ADV E.C.AHAMED FAZIL
RESPONDENT/RESPONDENT IN IA AND PETITIONER IN OP:
SHAHIMA JASMIN, AGED 33 YEARS
D/O. ABOOBACKER, THEKKEVALAPPIL HOUSE, KOOTILANGADI
POST, MALAPPURAM, PIN - 676506
BY ADVS.
T.K.AJITH KUMAR
VARNIBHA.T(K/002119/2021)
AISWARYA RAMESAN(K/000760/2019)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
02.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MAT.APPEAL NO. 231 OF 2024
2
JUDGMENT
Devan Ramachandran, J.
The appellant challenges the order of the learned Family
Court, Malappuram dated 03.01.2024, in I.A.No.5/2023 in OP
No.208/2021.
2. As per the pleadings on record, the appellant moved the
afore application to set aside the ex parte decree against him in
the Original Petition filed by the respondent - wife seeking return
of gold ornaments and making certain fiscal claims; accompanied
by another application, namely I.A.No.4/2023, seeking to condone
the delay of 63 days in filing it.
3. The learned Family Court, however, rejected
I.A.No.4/2023, thus refusing to condone the delay; and
consequently, I.A.No.5/2023 was also dismissed, confirming the
earlier ex parte decree.
4. The appellant challenges the afore orders as being illegal
and unlawful.
5. Sri.Ahamed Fazil E.C. - learned counsel for the appellant,
conceded that his client had been set ex parte by the learned
MAT.APPEAL NO. 231 OF 2024
Family Court earlier, as per order dated 23.03.2022, but that it
was set aside by the subsequent order dated 05.11.2022;
consequent to which, the matter was listed for trial. He admitted
that, thereafter, the appellant was again set ex parte on
20.02.2023; and that, subsequently on 21.02.2023, the original
petition was again decreed ex parte, which was then sought to be
set aside through I.A.No.5/2023 accompanied by I.A.No.4/2023,
seeking to condone the delay in filing the former. He argued that
the findings of the learned Family Court, Malappuram, are
untenable because his client had explained the delay cogently,
producing germane documents and materials in support of his
application. He thus prayed that the impugned orders be set aside
and his client be given an opportunity of contesting the Original
Petition on its merits.
6. However, Sri.Ajith Kumar - learned counsel for the
respondent, had a different story to tell, explaining that the
appellant was consistently indifferent in defending the Original
Petition; which is manifest from the findings of the learned Family
Court in the impugned order. He added that, therefore, even if
this Court is to show any indulgence to the appellant, it may be
only on condition that he will deposit the entire maintenance
MAT.APPEAL NO. 231 OF 2024
amounts adjudicated earlier by the learned Family Court in a
Miscellaneous Case filed by her; and by requiring the appellant to
furnish security for the entire claim in O.P.No. 208/2021. He
added that he is making these submissions because, otherwise, it
is likely that his client will be denied the fruits of the decree, even
if it is issued in her favour in the future.
7. Sri.Ahamed Fazil - learned counsel for the appellant,
responded to the afore saying that his client has already deposited
Rs.1,06,000/- in terms of the interim order of this Court dated
21.06.2024; and that this amount represents half of the sum
stated to have been adjudicated by the learned Family Court as
maintenance. He added that his client intends to challenge the
orders of the learned Family Court ordering maintenance; and
therefore, pleaded that he may not be directed to deposit the
entire amount now found against him. He, however, admitted that
his client is willing to furnish security for the amount claimed in
the Original Petition; and thus reiteratingly prayed that the
impugned orders be set aside.
8. We notice from the file that it was recorded by this Court,
in its order dated 07.06.2024, that arrears of maintenance ordered
by the learned Family Court is to an aggregate sum of
MAT.APPEAL NO. 231 OF 2024
Rs.2,12,000/-. This was recorded on the basis of the submissions
of Sri.Ajith Kumar; but today, he submits that this was in error
and that the actual amount due, as on March, 2024, is
Rs.3,12,000/-. We find no reason to doubt this because, there is
no contest to this figure by the appellant either.
9. In the afore circumstances, with the consent of both
sides, we allow this appeal and set side the impugned orders;
however, on the following terms:
(a) The appellant will deposit a further amount of
Rs.50,000/-, thus constituting 50% of the actual amount due as
maintenance, to the respondent as adjudicated by the learned
Family Court; and this shall be done not later than 31.08.2024.
(b) The appellant will also simultaneously and within the
afore date, furnish security for the entire amount claimed by the
respondent in O.P No.208/2021, to the satisfaction of the learned
Family Court, Malappuram. He will be at liberty to produce title
documents of any property which is otherwise unencumbered, but
subject to attachment in the said Original Petition, if any, for this
purpose.
(c) However, should the appellant refuse to abide by any of
MAT.APPEAL NO. 231 OF 2024
the afore directions, then the benefit of this judgment will be lost
to him and the orders impugned will stand confirmed.
(d) Needless to say, should the appellant abide by the afore
directions, then his remedies against the orders of the learned
Family Court in the Maintenance Case, if any, are left open, for
him to pursue, as per law.
Sd/- DEVAN RAMACHANDRAN
JUDGE
Sd/- M.B. SNEHALATHA
JUDGE
stu
