IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 Mat.Appeal.No. 84 of 2009 --------------------------- I.A. NOS. 3641/07 & 3642/07 IN OP.533/2006 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): --------------- SASI, AGED 35, S/O.KAMALAMMA, ATTARIKATHU VEEDU, ENAKARAKKAL, VADAKARA DESOM, MARAYAMUTTOM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS: --------------- 1. LEKHA, D/O. PANKAJAKSHY, NOTTAVILA PUTHEN VEEDU, AMARAVILA P.O., NEYYATTINKARA, THIRUVANTHAPURAM. 2. APARNA, MINOE , RESIDING AT DO. REPRESENTED BY HER GUARDIAN - MOTHER IST RESPONDENT. ADV. SRI.G.SUDHEER FOR R1-2 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== MAT APPEAL NO. 84 OF 2009-B ============================ DATED THIS THE 25TH DAY OF NOVEMBER 2009 JUDGMENT Basant,J. 1. This appeal is preferred by the appellant against the impugned order dismissing his prayer to set aside an ex parte order after condoning the delay of 112 days in filing the same. 2. Respondents are allegedly the wife and admittedly the child of the appellant. They had staked a claim for maintenance under Section 125 of the Code of Criminal Procedure. The matter came up before the Family Court, Nedumangad and as per an agreement between the parties, an amount of Rs.450/- per mensem was awarded as maintenance for the child alone. However, the respondents herein had filed the present O.P., i.e. O.P.No.533/2006 claiming maintenance past and future from the appellant. The appellant had entered appearance before the Family Court, Thiruvananthapuram. He later did not appear MAT APPEAL NO. 84/2009 -2- before the court. For about 4/5 postings, the appellant was not present. He was set ex parte and an ex parte order was passed granting maintenance to the respondents at the rate of Rs.1,000/- per month each from the date of the petition, i.e. 6-6- 2006 and past maintenance at the same rate for three prior years. 3. According to the appellant, he came to know of this order only later and it was hence that he had filed application for setting aside the ex parte order along with the prayer to condone the delay of 112 days. 4. The court below came to the conclusion that the delay does not deserve to be condoned as the appellant had not stated specifically the date on which he received information about the ex parte order. Accordingly, the court below proceeded to pass the impugned order. 5. Before us, learned counsel for the appellant-husband and respondent-claimants have advanced their arguments. The liability to pay maintenance of the child is not disputed and only dispute is about the quantum of maintenance payable. The learned counsel for the respondents submits that though there is a dispute regarding the marriage in this proceedings, in the MAT APPEAL NO. 84/2009 -3- proceedings before the Family Court, Nedumangad, such marriage was unambiguously admitted by the appellant herein. We do not want to go into that question in detail. We are satisfied that subject to appropriate terms and to ensure the interests of justice, this appeal can be allowed and the appellant can be granted an opportunity to contest the proceedings. 6. In the result: a) This appeal is allowed subject to conditions. b) The impugned order and the ex parte order passed in O.P.No.533/2006 shall stand set aside and the Family Court shall dispose of O.P.No.533/2006 afresh on the following terms and conditions: 1) The appellant shall within a period of sixty days from this date deposit the entire amount due by way of maintenance to the second respondent herein/minor. He shall also continue to pay the same pending disposal of O.P.No.533/2006. Such amounts if deposited shall forthwith be released to the first respondent who shall receive the same on behalf of the 2nd respondent. MAT APPEAL NO. 84/2009 -4- 2) The parties shall appear before the Family Court on 25-1-2010. If the amount is deposited before the court as directed, the Family Court shall record that fact and thereafter proceed to dispose of O.P.No.533/2006 afresh in accordance with law. If the amount is not deposited as directed, the Family Court shall record that fact on 25-1-2010 and thereupon the impugned ex parte order shall continue to remain in force. 3) The Family Court shall proceed to dispose of O.P.No.533/2006, if the amount is deposited, as expeditiously thereafter as possible, at any rate, within a period of three months from that date. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks. MAT APPEAL NO. 84/2009 -5-