Kerala High Court
Ashily vs Sabeela on 6 June, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA,
1946
CRL.MC NO. 675 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 14.12.2023 IN MC
NO.529 OF 2017 OF FAMILY COURT,THIRUVANANTHAPURAM
PETITIONER/PETITIONER/ORIGINAL COUNTER PETITIONER :
ASHILY, AGED 49 YEARS
S/O LATE SALAHUDEEN, PALAVILAKAM,
PRESSMUKKU, EDAVA, VARKALA,
THIRUVANANTHAPURAM DISTRICT., PIN - 695 311.
BY ADV ASHILY(PARTY-IN-PERSON)
RESPONDENT/COUNTER PETITIONER/ORIGINAL PETITIONER AND
STATE :
1 SABEELA, AGED 37 YEARS,
W/O ASHLY, NADUTHATTUVALUVILAKOM,
KUNCHALUMOODU, KARAMANA,
THIRUVANANTHAPURAM, PIN - 695 002.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682 031.
BY ADV P.V.ANIL
RENJITH T.R.(PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 06.06.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.MC 675/2024
2
BECHU KURIAN THOMAS, J
......................................................
Crl.M.C.No.675 of 2024
...................................................
Dated this the 6th day of June, 2024
ORDER
Being aggrieved by Annexure-II order dated 14.12.2023 in
Crl.M.P.No.10/2022 in M.C.No.529/2017 of the Family Court,
Thiruvananthapuram, petitioner has preferred this petition under Section
482 Cr.P.C.
2. Petitioner herein is the husband of the first respondent. By an order
dated 17.04.2021 in M.C.No.529/2017, the Family Court,
Thiruvananthapuram, set the petitioner ex parte and directed
Rs.10,000/- per month to be paid to the wife and Rs.6,000/- per month
to be paid to the minor daughter from 11.10.2017 onwards i.e., from the
date of petition.
3. Pointing out that the petitioner was stuck abroad during Covid-19
Pandemic and that he could not come down to India to contest the
maintenance case, an application was filed to set aside the ex parte
order against him. A petition to condone the delay of 307 days was
also filed. The Family Court, Thiruvananthapuram, by the impugned
order set aside the ex parte order, after condoning the delay by
imposing a condition of deposit of 10% of the total amount in arrears till
the date of payment. Petitioner is aggrieved by the said order, directing
deposit of 10% of he total amount in arrears, which according to him,
now totals to more than Rs.10,00,000/-.
4. I have heard Sri.Ashily, the party-in- person as well as Sri.P.V.Anil, the
learned counsel for the first respondent.
5. A perusal of the impugned order reveals that the petitioner had not
produced any document in support of his contention that he had gone
abroad and was stuck there due to Covid-19 Pandemic. It is also
mentioned that the petitioner had not produced his passport or even the
copy of the same, to prove his travel details and that there is a huge
delay of 307 days. However, petitioner has produced Annexure-III, the
photocopy of the relevant pages of the passport of the petitioner, which
indicates that petitioner he was out of country during the relevant time.
The original passport was also perused by this Court after it was directed
to be produced.
6. At the time the order in M.C.No.529/2017 was rendered, petitioner was
thus not in the country. The impugned order in fact, observed that the
ex parte order is required to be set aside. I am also of the view that an
opportunity ought to be granted to him to contest the petition on merits.
7. However the condition directing deposit of 10% of the total amount in
arrears is too onerous a condition as the said amount would total to
beyond a lakh of rupees. Nevertheless petitioner ought to be visited
with terms, for setting aside the ex parte order, which could be adjusted
towards the maintenance payable as may ultimately be quantified.
8. Thus, the condition to deposit 10% of the total amount in arrears till the
date of payment of the amount directed in the impugned order is hereby
set aside and an amount of Rs.50,000/- [Rupees Fifty thousand only] is
substituted as a condition for setting aside the ex parte order. The said
amount shall be deposited within one month from today and on such
deposit the respondents (wife and child) will be entitled to withdraw the
same.
Crl.M.C.is allowed in part as above.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/06/06/2024
PETITIONER ANNEXURES
ANNEXURE I TRUE COPY OF THE ORDER DATED 17.04.2021 IN MC
NO.529/2017 PASSED BY THE HON'BLE FAMILY
COURT, THIRUVANANTHAPURAM
ANNEXURE II CERTIFIED COPY OF THE ORDER DATED 14.12.2023
IN CRLMP NO.10/2022 IN MC NO.529/2017 PASSED
BY THE HON'BLE FAMILY COURT,
THIRUVANANTHAPURAM
ANNEXURE III TRUE COPY OF THE RELEVANT PAGES OF PASSPORT
OF THE PETITIONER
ANNEXURE IV TRUE COPY OF THE MEDICAL CERTIFICATE DATED
21.08.2010 ISSUED FROM PRS HOSPITAL,
THIRUVANANTHAPURAM
ANNEXURE V TRUE COPY OF THE MEDICAL CERTIFICATE DATED
22.02.2023 ISSUED BY SIVAGIRI SREE NARAYANA
MEDICAL MISSION HOSPITAL TO THE PETITIONER
ANNEXURE VI TRUE COPY OF THE MEDICAL CERTIFICATE OF
PETITIONER'S MOTHER DATED 05.11.2016 ISSUED
BY THE KIMS CANCER CENTRE, THIRUVANANTHAPURAM
TRUE COPY
