The court clarified that in maintenance cases, the financial circumstances of the petitioner must be balanced with the need for the respondents' support.

JUDGMENT

Dated this the 30th day of June, 2023 The petitioner is the respondent in M.C.No.60/2018 on the files of the Family Court, Kalpetta, filed by the petitioner's wife and child/respondents herein, claiming monthly maintenance allowance. As the petitioner remained absent despite issuance of service, the maintenance case was allowed exparte and the petitioner directed to pay monthly maintenance to the 1st respondent at the rate of ₹12,000/- and to the 2nd respondent at the rate of ₹8,000/-. Based on the award, the respondents filed two execution petitions claiming arrears of maintenance for the period from 11/12/2020 to 11/09/2021 and 10/04/2018 to

10/12/2018 respectively.

2. On coming to know about the execution proceedings, the petitioner filed an application for setting aside the exparte order, after condoning the delay of 1432 days. By the orders impugned in these original petitions, the Family Court allowed the delay condonation application and the petition for setting aside the exparte order on condition of the petitioner depositing 50% of the amount due towards arrears of maintenance.

3. In the meanwhile, the petitioner was arrested and detained in custody from 24/11/2022 till his release pursuant to this Court's order dated 25/05/2023.

4. Learned Counsel for the petitioner submitted that the petitioner's absence before the Family Court was for the reason that he was working outside the State at that point of time. It is contended that the period of detention undergone for non- payment of the maintenance allowance ought to be reckoned while deciding the balance amount due towards arrears of maintenance. It is submitted that the petitioner is a daily wage laborer and it is impossible for him to pay consolidated monthly maintenance of ₹20,000/-. Taking the above factor into consideration, the onerous condition of depositing 50% of the arrears of maintenance for getting the delay condoned and the exparte order set aside ought to be modified, is the final submission.

5. Learned Counsel for the respondents stoutly opposed the prayer for modification and submitted that the petitioner had willfully neglected to maintain the respondents and deliberately failed to pay maintenance, in spite of the Family Court's order.

6. Taking into account the petitioner's detention for almost six months, for non-payment of arrears of maintenance and payment of ₹20,000/- towards the arrears, pursuant to this Court's direction, the condition imposed by the Family Court is modified as under;

The petition for condonation of delay shall be allowed and the ex-parte order set aside on the petitioner depositing 20% of the arrears due as on date. The said amount shall be deposited within one month and receipt evidencing such payment/remittance shall be produced along with certified copy of this judgment. On deposit, the amount shall forthwith be released to the respondents.

The original petitions are disposed of as above.