Court upheld conditions imposed by Family Court for setting aside ex parte decree as reasonable under existing maintenance obligations.

Devan Ramachandran, J.

The petitioner challenges Ext.P6 order of the learned Family Court, Kozhikode, but only to the extent to which it has imposed a condition on him to pay Rs.25,000/- for the purpose of allowing I.A.No.3/2023 - which he had filed to set aside the ex parte decree earlier issued against him in O.P.No.974/2022.

2. Sri.M.Vivek Rabindranath – appearing for the petitioner, submitted that the condition imposed in Ext.P6 is onerous and that his client is not in a position to honour the same. He argued that such a condition ought not to have been imposed, particularly when his client moved the application to have the ex parte decree passed against him set aside.

3. No doubt, at first blush, a condition for the purpose of setting aside an ex parte decree may appear to be harsh. 4.However, in the case at hand, the decree passed by the learned Family Court in O.P.No.974/2022 was to the effect that the petitioner must pay Rs.3,000/- per month to each of the respondents as past maintenance; and finding that there is a total amount of arrears of Rs.1,32,000/-. This decree was issued as early as 17.08.2023 and the petitioner filed the application to have the same set aside in September of the said year. Obviously, there is no delay in the application; however, the learned Family Court appears to have thought that a condition must be imposed on the petitioner because, he has not made any payment to the respondents towards past maintenance.

5. It is pertinent that the past maintenance ordered by the learned Family Court is for the period from 22.06.2020 till 21.04.2022. It has now only imposed less than 10% of the total amount adjudicated as a condition for allowing the application. We can certainly not find this to be onerous or unconscionable, especially when the petitioner himself admits that he is liable in law to pay maintenance, though to a lesser amount than what has been ordered by the learned Family Court. Going by the amount now ordered as the condition, the per month payment for the entire period covering the past maintenance would be a minuscule amount; and for such reason also, we cannot find the view of the learned Family court to be in error.

6. After we dictated this part of the judgment, the learned Counsel for the petitioner – Sri.M.Vivek Rabindranath, sought that his client be given an opportunity to pay the amount as ordered by the learned Family Court, so that this application can be allowed. We find practical difficulty in issuing such a direction because, the order of the learned Family Court allowing I.A.No.3/2023 has not been placed on record and Ext.P6 is the only one assailed.

7. Ineluctably, therefore, if the petitioner requires any latitude, he will have to move the learned Family Court itself with a review of Ext.P6. We do not see that our observations in this case would him deny such right, if it is available to him in law.

In the afore circumstances, this Original Petition is dismissed.

Sd/-