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2024 Supreme(Online)(KER) 15704
HIGH COURT OF KERALA
BECHU KURIAN THOMAS, J
MUHAMMED HANEEFA. P – Appellant
Versus
SHAKEELA. P.V – Respondent
OP(Crl.) 318/2024
SHARAN SHAHIER
The court emphasized the importance of notice in maintenance proceedings and the need for reasonable conditions when setting aside ex parte orders.
Headnote:
[Maintenance] - [Family Law] - [CrPC Section 125] - [The court addressed the maintenance claim under Section 125 of the CrPC, emphasizing the necessity of notice for the petitioner. It set aside the ex parte order, modifying the deposit condition from Rs. 50,000 to Rs. 40,000, ensuring fairness in the proceedings.]
Fact of the Case:
The petitioner, respondent in a maintenance claim, was not served notice and thus the Family Court allowed the claim ex parte. The petitioner later sought to set aside this order and condone a 377-day delay, which the court granted, imposing a deposit condition.
Finding of the Court:
The Family Court found that the petitioner was not served notice, justifying the setting aside of the ex parte order. It deemed the Rs. 50,000 deposit condition excessive and modified it to Rs. 40,000, allowing the case to be reconsidered.
Issues: Whether the Family Court's condition of a Rs. 50,000 deposit for setting aside the ex parte order was appropriate given the circumstances of the case.
Ratio Decidendi: The court held that the lack of notice to the petitioner invalidated the ex parte order, and the deposit condition should be reasonable, reflecting the interests of justice.
Final Decision: The petition is allowed, modifying the deposit condition to Rs. 40,000.
Petitioner is the respondent in MC.No.320/2021 on the files of the Family Court, Kozhikode. The application was filed by the respondents claiming maintenance under Section 125 of the CrPC. Since the petitioner remained exparte, the application was allowed directing the petitioner to pay a sum of Rs.10,000/- per month to each of the respondents from 12.11.2021. Subsequently, petitioner filed an application to set aside the exparte order as well as to condone the delay of 377 days in filing the petition to set aside exparte order. By a common order dated 14.8.2023 the Family Court, Kozhikode, allowed both the applications.
2.In the impugned order itself it was observed that the petitioner was not served with notice in the case and hence the exparte order was liable to be set aside. The Court also found it fit and appropriate to condone the delay of 377 days in filing the application to set aside the exparte order. However, in the interest of justice, taking into the consideration that the claimants before the Family Court, Kozhikode, was the wife and children of the petitioner, the petitions were allowed on payment of Rs.50,000/-which was directed to be adjusted towards the maintenance amount due. Challenging the afore said direction to deposit Rs.50,000/- as a condition for setting aside the exparte order, this original petition has been preferred.
3.Despite service of notice, there is no appearance for the respondents.
4.When this petition came up for consideration initially, this Court had directed an amount of Rs.20,000/- to be deposited within four weeks. Subsequently, on 05.06.2024 there was a direction to deposit further amount of Rs.20,000/-. The learned Counsel for the petitioner submitted that on 1.06.2024 and on
10.07.2024, the deposits as directed by this Court were made before the Family Court, Kozhikode. In view of the above deposit, it is observed that the respondents who are claimants before the Family Court will be entitled to withdraw the said amount.
5.On the merits of the matter, since the Family Court itself had felt it appropriate to set aside the exparte order after condoning the delay, the amount of Rs.50,000/- directed to be paid is too onerous a condition and it ought to be limited to the amount of Rs.40,000/- already deposited.
6. Since the amount of Rs.40,000/- has already been deposited the order dated 17.12.2021 in MC No.320/2021, on the files of the Family Court, Kozhikode, shall stand set aside by modifying the condition of deposit in Ext.P6 limiting it to Rs.40,000/-. The Family Court, Kozhikode shall consider M.C.No.320/2021 afresh after granting opportunity of hearing to the petitioner as well as to the respondents. This Original Petition is allowed, to the above extent.
