IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 Mat.Appeal.No. 459 of 2008(Y) ----------------------------- OP.1355/2004 of FAMILY COURT,ERNAKULAM .................... PETITIONER(S): --------------- MAYA @ INDU, D/O VILASINI, KOCHERI HOUSE, S. EROOR, TRIPUNITHURA. BY ADV. SRI.T.RAVIKUMAR RESPONDENT(S): --------------- SHAJI M.B., S/O BALAKRISHNAN NAIR, MUNDACKAL HOUSE, CHOYIKKARA MUGIL, VADAYAMPADI P.O., PUTHENCURUZ. ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM FOR R1 THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 12/12/2008, ALONG WITH WPC NO. 33174 OF 2008 THE COURT ON 18.12.2008 DELIVERED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - M.A. No.459/2008 & W.P.(C) No.33174/2008-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of December, 2008. JUDGMENT Ramachandran Nair, J. The judgment in O.P.No.1355/2004 on the file of the Family Court, Ernakulam is under challenge in Mat. Appeal No.459/2008, by the divorced wife. The challenge is limited to one question, i.e. the future maintenance which has been restricted for a period of three years from the date of judgment. In Writ Petition No.33174/2008 the former husband is challenging the grant of maintenance as well as the order dismissing an application to set aside the ex-parte decree ( marked as Exts.P2 and P5 in the writ petition). 2. Heard learned counsel appearing on either side. Learned counsel for the appellant in Mat. A.No.459/2008 pointed out that even though maintenance was awarded at the rate of Rs.1,000/- per month both past as well as future, the future maintenance is restricted from 5.12.2004 to a period of three years from the date of judgment. We see force in the said contention. No reasons have been stated as to why the future maintenance is restricted thus. Therefore, the judgment has to be set aside and the matter M.A.459/08 & WPC 33174/08 -2- has to be remitted back for fresh consideration. 3. In Writ Petition No.33174/2008, learned counsel appearing for the petitioner submitted that the petitioner was in Gulf countries and returned from there only in May, 2008. In fact, going by Exts.P6 and P7, it will be seen that the original petition filed by the husband seeking divorce was allowed and the petition filed by the wife for recovery of ornaments, has been dismissed by the Family Court earlier. It is submitted that the application for setting aside the ex-parte decree ought to have been allowed and he should have been given an opportunity to contest the matter on merits. 4. In the light of the view taken by us in Mat.A.No.459/2008, the matter has to be remitted back. We set aside the judgment of the Family Court in O.P.No.1355/2004 and Ext.P5 order passed by the Family Court rejecting the applications to set aside the ex-parte decree and the application for condoning the delay in filing the said application. The petitioner in Writ Petition No.33174/2008 will be allowed an opportunity to contest the matter on merits. But the same will be subject to the following conditions: The petitioner in W.P.(C) No.33174/2008 will deposit an amount of Rs.30,000/- in three monthly instalments. The first instalment shall be paid M.A.459/08 & WPC 33174/08 -3- before 12.1.2009, the second instalment before 12.2.2009 and the third instalment before 12.3.2009. If the above amount is paid, the applications will stand allowed. If he commits default in paying the amount, we make it clear that both the applications will stand dismissed and Writ Petition No.33174/2008 will also stand dismissed and he will not get the benefit of this judgment. Writ Petition No.33174/2008 is disposed of as above and Mat. Appeal No.459/2008 is partly allowed. No costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/