IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 Mat.Appeal.No. 77 of 2008() --------------------------- AGAINST THE ORDER DATED 20/11/2007 IN IA.1662/07,IA.1663/07 IN OP.191/2007 of FAMILY COURT, MALAPPURAM .................... APPELLANT/PETITIONER: ---------------------- P. ASHIQ, AGED 32 YEARS, S/O. MR. MUHAMMED, PALUKATTIL HOUSE, KAPPUR P.O. OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV.S SRI.VARGHESE C.KURIAKOSE SRI.B.S.SURESH KUMAR RESPONDENT/RESPONDENT: ------------- K. HAFSATH, AGED 20 YEARS, D/O. MUHAMMED, SHEREENA NILAYAM, THANUR ROAD P.O. PARAPPANANGADI, MALAPPURAM DISTRICT. BY ADVS. SRI.V.V.ASOKAN SMT.S.AMINA THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2008 ALONG WITH MAT. APPEAL NOS.78/2008 AND 80/2008 AND W.P.(C) NO.4071/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A. NO. 313 OF 2008 IN MAT. APPEAL NO. 77 OF 2008. DISMISSED 4.3.2008. Sd/- (KURIAN JOSEPH, JUDGE) Sd/-(HARUN-UL-RASHID, JUDGE) KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- MAT. APPEAL NOS. 77, 78 & 80 OF 2008 & W.P.(C) NO.4071 OF 2008 ---------------------------------------------------------------- Dated this the 4th day of March, 2008 JUDGMENT Harun-Ul-Rashid, J. Mat. Appeal No. 77 of 2008 is filed by the respondent in O.P. No.191 of 2007 on the file of the Family Court, Malappuram. He is the applicant in I.A. Nos.1662 of 2007 and 1663 of 2007. The above two interlocutory applications were filed for setting aside the ex parte order dated 1.6.2007 and for condonation of delay in filing the application for setting aside the ex parte order. The Family Court dismissed both the applications. Being aggrieved by the order of dismissal, the above Matrimonial Appeal is filed. 2. The appellant in Mat. Appeal No.78 of 2008 is the respondent in the connected Original Petition, O.P. No,.192 of 2007 before the same court. The parties are the same. The appellant filed two interlocutory applications, I.A. Nos.1665 of 2007 and 1666 of 2007, for setting aside the ex parte order dated 1.6.2007 and for condonation of delay in filing the Mat. Appeal No.77/2008 & Connected Cases 2 application for setting aside the ex parte order. The Family Court dismissed both the applications against which this appeal is filed. 3. Mat. Appeal No.80 of 2008 is filed against the order in I.A. Nos.1668 of 2007 and 1669 of 2007 in O.P.No.193 of 2007 before the same court for setting aside the ex parte order dated 1.6.2007 and for condonation of delay in filing the application for setting aside the ex parte order. The Family Court dismissed both the applications and hence, this appeal. 4. W.P.(C) No.4071 of 2008 is filed by the appellant in the above appeals with the following prayer: "Call for the records leading to Exts.P2 and P3 orders, examine the same and quash Ext.P3 order in so far as it imposes the highly onerous condition of depositing the entire arrears upto the date of Ext.P3 which comes to Rs.40,000.00 (Rupees Forty thousand only) and delete the said condition and direct the Family Court, Malappuram to forthwith take up M.C. No.205/2007 and permit the petitioner to file objections in the M.C. and give an opportunity to the petitioner to have the said M.C. case heard on merits after giving evidence. Mat. Appeal No.77/2008 & Connected Cases 3 The Family Court allowed M.C. No.205 of 2007 and directed the petitioner herein to pay maintenance to the respondent at the rate of Rs.5,000/- per month from the date of filing of the M.C. case. The petitioner herein was set ex parte in the proceedings before the Family Court. He, therefore, filed C.M.P. No.2202 of 2007 for setting aside the ex parte order. The said petition was allowed on condition that the petitioner deposits the entire arrears of maintenance on or before 5.12.2007 failing which the petition shall stand dismissed with costs. 5. O.P. No.191 of 2007 was filed by the respondent herein seeking past maintenance of Rs.40,000/- with interest at the rate of 6% p.a. O.P. No.192 of 2007 was filed by her seeking recovery of dowry amount of Rs.3,10,000/-. The respondent also filed O.P. No.193 of 2007 and M.C. No.205 of 2007 seeking dissolution of marriage under Section 2(viii)(a)(d) of Dissolution of Muslim Marriage Act and for maintenance at the rate of Rs.5,000/- per month. The appellant who is the respondent in the above Original Petitions and M.C. case was absent and set ex parte. 6. The respective interlocutory applications mentioned above are filed in all the four cases for setting aside the ex parte order and also for Mat. Appeal No.77/2008 & Connected Cases 4 condoning the delay in filing the application to set aside the ex parte order. The appellant submitted that he is employed abroad and, therefore, there was no occasion for him to receive the notice in the above mentioned proceedings. He further submitted that he came to know of the ex parte orders only on 26.2.2007 when he came down to Kerala. He also submitted that considerable hardship will be caused to him if the ex parte orders are sustained. The respondent submitted that notice was served by affixture and by publication in the Newspaper and it was only thereafter that the appellant was set ex parte and hence, there is no reason to set aside the orders under challenge. 7. It is a fact that all the four cases were decided without contest. The appellant prays for an opportunity to present his case for a decision on merits. We are of the view that in the interest of justice, an opportunity has to be given to the appellant to contest the cases on merits on condition that the appellant pays Rs.5,000/- as costs. In the result, Matrimonial Appeal Nos.77 of 2008, 78 of 2008 and 80 of 2008 and W.P.(C) No.4071 of 2008 are allowed. The interlocutory applications filed in O.P. Nos.191, 192 and 193 of 2007 and in M.C. Mat. Appeal No.77/2008 & Connected Cases 5 No.205 of 2007 are allowed setting aside the orders under challenge. The appellant shall pay costs to the tune of Rs.5,000/- within one month from today, failing which the applications shall stand dismissed. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ Mat. Appeal No.77/2008 & Connected Cases 6 KURAIN JOSEPH & HAURN-UL-RASHID, JJ Mat. Appeal NOS.77,78 &80/2008 & W.P.(C)NO. 4071 OF 2008 JUDGMENT