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2023 Supreme(Online)(KER) 5312
HIGH COURT OF KERALA
A. BADHARUDEEN, J
VASANTH KUMAR – Appellant
Versus
HEMALATHA – Respondent
RPFC 326/2022
T.MADHU, C.R.SARADAMANI, SHAHID AZEEZ, RENJISH S. MENON, RANJAN SURESH, M.SASINDRAN SR.PP, SRI.RENJIT GEORGE
A petitioner may be allowed to contest an ex-parte maintenance order if conditions regarding compliance with past dues are met, emphasizing the principle of justice over procedural default.
Headnote:
Revision - Family Law - Family Court Act, 1984 - Section 19(4) - The court reviewed a revision petition against an ex-parte maintenance order, emphasizing the need for the petitioner to be given a chance to contest the matter with conditions on compliance regarding past and future maintenance payments.
Fact of the Case:
A revision petition was filed under the Family Court Act challenging an ex-parte maintenance order that required the petitioner to pay increased monthly maintenance. The petitioner sought to set aside the order due to absence during proceedings.
Finding of the Court:
The court found merit in granting the petitioner an opportunity to contest the maintenance claim, conditional on paying overdue maintenance and costs. It acknowledged the petitioner's negligence but prioritized justice through a fair hearing.
Issues: Whether the revision petition should be granted to allow the petitioner to contest an ex-parte maintenance order despite previous non-prosecution.
Ratio Decidendi: The court established that the failure to contest a maintenance order should not preclude a fair hearing if the interests of justice warrant it; however, compliance with financial obligations is necessary.
Final Decision: The court set aside the dismissal of the revision petition, subject to the petitioner fulfilling specific financial conditions.
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.
