A settlement infringing maintenance entitlements contravenes public policy; delay in revising ex parte orders is deemed neglectful.

ORDER

Dated this the 16^th day of May, 2023 The revision petition is filed challenging the order passed in MC No.906 of 2011 filed by the respondents, who are the wife and children of the petitioner. The petitioner has also filed an application for condoning the delay of 2453 days in filing the revision petition. The prayer in the original petition is to quash the petition filed by the respondents, seeking to execute the order in M.C.No.906 of 2011.

2. The essential facts are as under;

The MC No.906 of 2011 was filed by the respondents seeking maintenance allowance at the rate of Rs.6,000/-, Rs.4000/-, Rs.3000/-, Rs.2000/- and Rs.1000/- respectively. As the petitioner failed to appear before the Family Court, despite issuance of notice, he was set ex parte and an order passed on 23.05.2013 allowing maintenance allowance, as claimed by the respondents.

3. Adv.Jamsheed Hafiz appearing for the petitioner submitted that there is no wilful or deliberate latches on the part of the revision petitioner and the ex parte order was passed at a time when the petitioner was laid up after undergoing a surgery. It is pointed out that, after the first respondent filed CMP (Ex.) 570 of 2013 for getting the order executed, the dispute between the parties was amicably settled and they started residing together. Thereafter, the petitioner went abroad in connection with his employment and used to send money to the respondents regularly. After the petitioner came back, the first respondent executed a compromise agreement, categorically agreeing to withdraw CC No.617 of 2014 filed by her before the Judicial First Class Magistrate Court, Parappanangadi alleging commission of offence under Section 498 A IPC, as also MC No.906 of 2011 filed before the Family Court, Malappuram. In tune with the settlement, the first respondent turned hostile during her examination in CC No.617 of 2011, resulting in the petitioner being acquitted of the offence under Section 498A of IPC. Surprisingly, the first respondent thereafter approached the Family Court with a petition for reviving CMP (Ex.) No.570 of 2013, which had been closed based on the report that the petitioner had gone abroad. Reliance is placed on an affidavit filed by the second respondent before the Family Court, stating that her marriage was conducted by the petitioner and that the petitioner had helped in securing employment for the other children and no amount is due from him towards maintenance allowance. In spite of petitioner filing objection and producing affidavit of the second respondent, CMP(Ex.) No.570 of 2013 was reopened and non-bailable warrant issued against him. It is contended that the delay had occurred since the petitioner was under a bona fide belief that no further steps will be taken based on the order passed by the Family Court in view of the settlement arrived at between the parties.

4. Adv.M.A.Zohra appearing for the respondents, submitted that the petitioner was fully aware of the maintenance case and had wilfully kept away from the proceedings, resulting in the court passing the ex parte order. Thereupon, the first respondent had filed CMP(Ex.) No.570 of 2013. In the execution petition, summons, distress warrant and non- bailable warrant were issued against the petitioner. Finally, the non-bailable warrant was executed on 27.02.2015. Immediately thereafter, the petitioner went abroad and the CMP was closed with liberty to revive if necessary. Later, on getting information that the petitioner had come back, the first respondent filed a petition for re-opening the execution petition. The revision petition challenging the original order directing payment of mainteance allowance is filed only after non-bailable warrant was issued in the execution petition.

5. Learned Counsel