IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19587 of 2008(S)
1. RADHAKRISHNAN, S/O.PUVVATTU PUVVATHUM
... Petitioner
Vs
1. NISHA, D/O.THEKKUMCHERI AMBUJAKSHI AMMA,
... Respondent
For Petitioner :SRI.K.T.SHYAMKUMAR
For Respondent :SRI.MILLU DANDAPANI
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :08/01/2010
O R D E R
K.M.JOSEPH & P.Q.BARKATH ALI, JJ.
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W.P.(C) No.19587 of 2008-S &
W.P.(C) No.20547 of 2008-S
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Dated, this the 8th day of January, 2010
J U D G M E N T
K.M.Joseph, J.
Since the parties to the writ petitions are the
same, we are disposing of the writ petitions by this common
judgment.
W.P.(C) No.19587 of 2008
2. This writ petition is filed by the
petitioner/husband against the respondent/wife challenging
Ext.P2. The petitioner had filed Original Petition seeking
partition. On account of the default on the part of the
petitioner to appear the said petition came to be dismissed for
default. Thereupon, the petitioner filed petition to restore the
petition dismissed for default. That petition stands allowed by
Ext.P2. The Family Court, Malappuram has allowed the
application on condition that the petitioner deposits Rs.5,000/-
as cost.
W.P.(C) No.19587 of 2008-S &
W.P.(C) No.20547 of 2008-S -2-
W.P.(C) No.20547 of 2008
3. This writ petition is filed to set aside Ext.P2
and to allow I.A.No.1990/2007 in O.P.No.210/2007 on the file
of the Family Court, Malappuram and to restore the matter to
the file.
4. In this case the respondent and the minor
children had filed O.P.210/2007 seeking past maintenance
under Section 7 (1) (f) of the Family Court Act. On
24th August, 2007 the petitioner herein was set exparte.
Acting on the affidavit filed by the respondent and the minor
children, the Court allowed the Original Petition directing the
respondent to pay past maintenance of Rs.1,05,000/- with
interest at the rate of 6% from the date of the order till
realisation with costs. Thereupon, the petitioner filed
application to set aside the exparte order. The said
application has been allowed on condition that the petitioner
will deposit the entire arrears of past maintenance ordered to
his two minor children and half of the arrears of maintenance
ordered to his wife both on or before 11.30 a.m. on
29.1.2008.
W.P.(C) No.19587 of 2008-S &
W.P.(C) No.20547 of 2008-S -3-
5. We heard Sri.Harish R.Menon, learned counsel
for the petitioner and Smt.Sumathi Dandapani, learned senior
counsel for the respondent. Learned counsel for the
petitioner submits that the petitioner could not appear on
account of an untoward incident and he would submit that
the imposition of cost of Rs.5,000/- and also imposition of the
condition to pay the full maintenance to the minors and half
of the maintenance ordered to the wife cannot be supported.
Per contra, learned senior counsel for the respondent supports
the order.
6. Learned senior counsel for the respondent
would submit that in case the Court interferes she does not
have any objection in enuring the benefit of the order to the
minor children also.
7. We agree with the Family Court that the
petitioner should be given an opportunity. We also agree that
it cannot be an unconditional order. But, we feel that the
imposition of cost of Rs.5,000/- in a matter of this nature
may not be justified. We reduce the cost of Rs.5,000/-
ordered in Ext.P2 in W.P.(C) No.19587/2008 to Rs.3,000/-
W.P.(C) No.19587 of 2008-S &
W.P.(C) No.20547 of 2008-S -4-
(Rupees three thousand only). Accordingly, we modify Ext.P2
and direct that I.A.No.1991/2007 in O.P.No.506/2007 will
stand allowed upon the petitioner paying Rs.3,000/- (Rupees
three thousand only) to the respondent which is to be paid
within a period of three weeks from today.
8. W.P.(C) No.20547/2008 relates to past
maintenance. As per order of this Court petitioner has
deposited Rs.25,000/- and it is also common case that the
said amount has been withdrawn by the respondent. Having
regard to the facts of the case we feel that an opportunity on
less onerous terms than imposed by the Family Court can be
given. In such circumstances, we interfere with Ext.P2 and
order as follows:-
I.A.No.1990/2007 in O.P.No.210/2007 on the file
of the Family Court, Malappuram shall stand allowed on
condition that a further sum of Rs.20,000/- (Rupees twenty
thousand only) will be deposited by the petitioner in the
Family Court, within a period of one month’s time from today.
Upon deposit, it will be open to the petitioners 2 and 3 in
O.P.No.210/2007 to withdraw the same. If the petitioner
W.P.(C) No.19587 of 2008-S &
W.P.(C) No.20547 of 2008-S -5-
deposits Rs.20,000/- as aforesaid, the Family Court,
Malappuram will take up O.P.No.210/2007 and take a decision
on the same within a period of four months from the date on
which the payment of Rs.20,000/- is notified to it by the
parties. We further make it clear that the amount which has
been deposited by the petitioner, namely, Rs.25,000/- and the
amount to be deposited by the petitioner (Rs.20,000/-) will
be taken into consideration by the Family Court when it
considers the question of the amounts to be paid in case the
Family Court finds that the petitioner is liable to pay any
amount towards maintenance.
(K.M.JOSEPH)
JUDGE.
(P.Q.BARKATH ALI)
JUDGE.
MS