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2023 Supreme(Online)(KER) 26810
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 9TH DAY OF JANUARY 2023 / 19TH POUSHA, 1944
RPFC NO. 326 OF 2022
AGAINST THE ORDER DATED 12.9.2022 IN CRL.R.P.I.A.NO. 346/2021 IN
MC NO.166/2019 OF FAMILY COURT, KASARAGOD
REVISION PETITIONER/PETITIONER/RESPONDENT:
VASANTH KUMAR,
AGED 47 YEARS, S/O.VASUDEVA HEGDE,
RESIDING OPP. KUMBLA CHURCH, BADIADKA ROAD,
KOIPADY VILLAGE, MANJESHWAR TALUK,
KASARAGOD DISTRICT, PIN - 671321
BY ADVS.
T.MADHU
C.R.SARADAMANI
SHAHID AZEEZ
RENJISH S. MENON
RANJAN SURESH
RESPONDENTS:
1
HEMALATHA
AGED 46 YEARS, W/O.VASANTH KUMAR,
RESIDING AT SHETTY GADDE HOUSE, KOIPADY VILLAGE,
KUMBLA P.O., MANJESHWAR TALUK, KASARAGOD DISTRICT,
PIN - 671321
2
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
BY ADV M.SASINDRAN
SR.PP-SRI.RENJIT GEORGE
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 09.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RP(FC) NO. 326 OF 2022
2
In the interest of justice, a court may set aside an ex-parte order even if the defaulting party was negligent, provided that certain conditions are met.
Headnote:
MAINTENANCE - ENHANCEMENT - EX-PARTE ORDER - SETTING ASIDE - DEFAULT - INTEREST OF JUSTICE
Fact of the Case:
The revision petitioner challenged the dismissal of his petition to set aside an ex-parte order enhancing maintenance in a matrimonial case. The ex-parte order was passed due to the petitioner's absence and failure to prosecute the matter.
Finding of the Court:
The court found that the petitioner had been negligent in prosecuting the matter and paying maintenance. However, in the interest of justice, the court set aside the dismissal order on the condition that the petitioner paid costs and cleared the arrears of maintenance.
Issues: Whether the ex-parte order enhancing maintenance should be set aside despite the petitioner's default.
Ratio Decidendi: The court held that the petitioner should be given an opportunity to contest the enhancement of maintenance, but only if he fulfilled certain conditions, including paying costs and clearing the arrears of maintenance.
Final Decision: The court set aside the dismissal order on the condition that the petitioner paid costs and cleared the arrears of maintenance. If the petitioner failed to comply with these conditions, the dismissal order would be revived.
JUDGMENT
Dated this the 9th day of January, 2023 This revision petition has been filed under Section
19(4) of the Family Court Act, 1984, challenging order in Crl.RPIA No. 346/2021 in MC No.166/2019 on the files of the Family Court, Kasaragod. The revision petitioner is the petitioner in the above petition and the respondent in MC No. 166/2019. The respondents are the original petitioner and the State.
2. Heard the learned counsel for the revision petitioner and the learned counsel appearing for the 1st respondent as well as the learned Public Prosecutor.
3. It is submitted by the learned counsel for the revision petitioner that, in the year 2013 the 1st respondent herein filed MC No.44/2013. As per order dated 27.08.2023 the MC was allowed with direction to the petitioner herein to pay Rs.2,500/- per month as maintenance.
4. Thereafter, the 1st respondent filed MC No.166/2019 to enhance the quantum of maintenance and the same was allowed ex-parte, granting maintenance at the rate of Rs.7,500/- per month.
5. The petitioner herein filed Crl.RPIA No.346/2021 to set aside the ex-parte order and the same was dismissed as per the order impugned on the ground that the petitioner failed to proceed with the matter and he was continuously absent to proceed with the petition.
6. While pressing for interference in the impugned order, the learned counsel for the revision petitioner prayed for an opportunity to agitate the matter afresh before the Family Court. Though the otherside opposed the said prayer on the ground that the petitioner is willfully negligent not only in prosecuting the matter but also in paying at least the amount of maintenance granted as per the original order itself.
7. To be on the crux of the matter, the petition filed by the petitioner herein to set aside the ex-parte order in MC No.166/2019 was dismissed for default, for non-prosecution.
8. Therefore,in the interest of justice, the order requires interference, facilitating an opportunity to the petitioner to contest MC.No.166/2019. Therefore, the order impugned stands set aside on condition that the petitioner shall pay or deposit Rs.5,000/-(Rupees Five Thousand Only) as cost to the 1st respondent, within a period of seven days from the date of appearance of the parties before the Family Court and also on further condition that, he shall clear the entire arrears at the rate of Rs.2,500/- (Rupees Two Thousand Five Hundred Only) due from the date of order in M.C.No.44 of 2013 till the filing of MC No.166/2019 and thereafter at the rate of Rs.3,000/- (Rupees Three Thousand Only) per month till this date, within a period of forty five days. The parties are directed to appear before the Family Court on
23.01.2023.
It is specifically ordered that, if the cost and the direction to deposit the arrears not complied within time, the order of dismissal of Crl.RPIA No. 346/2021 in MC No.166/2019 stands revived. If so, the 1st respondent herein/petitioner in the above M.C. can execute the ex-parte order to realise the arrears, in accordance with law.
