IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 OP (FC).No. 1722 of 2011(R) ---------------------------------- OP.306/2006 of FAMILY COURT,ERNAKULAM .................... PETITIONER ---------------- K.V.KUMAR AJITH, S/O. VELAPPAN, KUPPAKULANGARA HOUSE, KOOVAPADAM, KOCHI-2. BY ADVS. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN RESPONDENT(S): --------------------- ROMOLA CLEATUS, AGED 36 YEARS, D/O. CLEATUS, MULLAPARAMBIL HOUSE, EDAKOCHI, KOCHI-6. R1 BY ADV. SMT.K.GIRIJA THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON 05/09/2011 DELIVERED THE FOLLOWING: svs O.P.(FC). NO. 1722/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE “B” DIARY SHOWING THE POSTING OF I.A.992/2007 IN O.P.306/2006 OF THE FAMILY COURT ERNAKULAM. P2: COPY OF THE COMMON ORDER IN I.A. NO.992/2007 AND 994/2007 IN O.P. NO.306/2006. P3: COPY OF THE OF I.A. NO.1592/2010. P4: COPY OF THE OBJECTIONS TO I.A. NO.1592/2010. P5: COPY OF THE ORDER IN I.A. NO.1592/2010 IN I.A. NO.992/2007 994/2007 IN O.P. NO.306/2006 FAMILY COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: R1(a):COPY OF THE LETTER OF RELINQUISHMENT DATED 13/03/2006 ISSUED BY MR.SUBAL, ADVOCATE, PROVIDENCE ROAD, COCHIN IN O.P.NO.2005. R1(b):COPY OF THE PETITION FOR STAY DATED 30/07/2010 FILED BY THE PETITIONER. R1(c):COPY OF I.A. O.992/2007 FILED BY THE PETITIONER. R1(d):COPY OF I.A. NO.994/2007 FILED BY THE PETITIONER HEREIN. R1(e):COPY OF THE ORDER DATED 07/04/2006 IN O.P.NO.849/2005 PASSED BY THE FAMILY COURT, ERNAKULAM. R1(f):COPY OF O.P. NO.306/2006 FILED BY THE RESPONDENT. R1(g):COPY OF THE DECREE DATED 17/08/2006 IN O.P. NO.306/2006. /TRUE COPY/ P.A. TO JUDGE. svs THOTTATHIL B.RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. ----------------------------------- O.P(FC).No.1722 OF 2011 ------------------------------------ Dated this the 5th day of September, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.This writ petition is filed under Article 227 of the Constitution of India challenging Ext.P5 order, by which, the family court refused to review an order dismissing an application to set aside an ex parte decree. This has been done, also holding that the review petition filed on 6.4.2010 does not even give any valid reason explaining the delay from 30.4.2009, the date on which the application to set aside the ex parte decree was dismissed. 2.There was no application seeking condonation of delay in filing the petition for review. There is considerable controversy between the parties as to whether the petitioner before us was aware of the dismissal of the application to set OPFC.1722/11 2 aside the ex parte decree and whether he was bound to explain such delay. 3.Being a matter where Article 227 of the Constitution is invoked, all grounds of illegality would not call for interference with the impugned proceedings or order. Even if it is a case where the order is shown to have been made erroneously, the visitorial supervisory jurisdiction under article 227 would be exercised only in a case where the facts disclose injustice and the situation warrants interference to undo it. 4.The respondent and the petitioner, professing different religions, married under the provisions of Special Marriage Act on 27.1.1997. A girl child was born to them. 5.With the passage of time, in 2005, the respondent wife sued the husband for divorce on the ground of cruelty and adultery. Though the alleged adulterer Bhamini remained ex OPFC.1722/11 3 parte, the husband, the petitioner before us, entered appearance, however, ultimately absenting himself since proceedings for counselling. The application for divorce was allowed ultimately on 7.4.2006 upholding the wife’s contention as to adultery, though ex parte. 6.In 2006, the respondent and the then three (3) year old daughter, represented by the mother, filed OP.306/06 seeking maintenance for the daughter and amounts which the respondent herein claimed as due to her, also on the basis of certain transactions with financial institutions. The respondent did not seek maintenance but claimed that she is entitled to return of 5 ½ sovereigns of gold ornaments. The family court decreed that ex parte on 17.8.2006. 7.Fairly long thereafter, the husband applied to have that ex parte decree for maintenance, and money on other counts, set aside. OPFC.1722/11 4 8.It appears that in the interregnum, he married the aforesaid Bhamini whom the wife had arrayed as the adulterer in the divorce proceedings. It appears that Bhamini had been a widow with a girl child, now aged thirty one (31) years. 9.The family court, by order dated 30.4.2009, held that except filing proof affidavit, the petitioner herein remained absent continuously and in spite of sufficient opportunity, he failed to substantiate his contentions to have the ex parte decree set aside. It was found that he had failed to make out sufficient grounds to condone the delay in applying to set aside the ex parte decree. The applications to condone the delay and to set aside the ex parte decree were dismissed as per Ext.P2 order dated 30.4.2009. 10.It is the aforesaid orders that the petitioner herein sought review of. He challenged that order by filing application on 6.4.2010. The family court did not find any ground to review OPFC.1722/11 5 that order. It also held that the petitioner herein had no reason to offer for the delay in seeking review. 11.In the aforesaid context, this Court, while admitting this original petition, had granted an interim order of stay on condition that an amount of Rs.1,20,000/- be deposited within a period of 10 days from 30.5.2011 and a further amount of Rs.1,20,000/- be deposited within a further period of three weeks. 12.The petitioner, thereafter, came up with request for modification of the conditions. We record that by this time, he has satisfied payment of the first instalment of Rs.1,20,000/- and Rs.60,000/- out of the second instalment of Rs.1,20,000/-. Going by the materials which he has placed, along with his application for variation of the conditions in the interim order, we see that Shobitha, now aged 31 years, daughter of the aforesaid Bhamini in her earlier marriage, developed some carcinoma related condition to her left OPFC.1722/11 6 fallopian tube. It is stated that she underwent a surgery and also some Chemotherapy. She is stated to be a spinster. 13.With the aforesaid, the submission of the petitioner before us is that he has to meet the bills of his step daughter, who, unfortunately, is undergoing treatment in a hospital. We see the needs of that woman who is the daughter of Bhamini through her former husband. At the same time, as noted in our order dated 29.7.2011, we do not find any reason for the petitioner before us to avoid paying the past maintenance to his biological minor child. We said that so in the order dated 29.7.2011 because that interim order was so moulded taking into consideration the accrued past maintenance. 14.In the aforesaid premise, we thought it appropriate to look into whether the impugned order works out any injustice to the petitioner calling for interference under Article 227 of the Constitution. OPFC.1722/11 7 15.The petitioner, admittedly, did not contest the divorce proceedings in which the aforesaid Bhamini was impleaded as the adulterer. Even she stood ex parte in that proceedings. The petitioner herein appeared in that divorce proceeding, but later excused himself away, once counselling started. This is what the orders reflect. Thereafter, when he faced litigation for maintenance for the three year old biological daughter and for 5 ½ sovereigns of gold and for amounts on the basis of transactions with financial institutions, he again remained ex parte. The matrimonial tie that was there between the petitioner and the respondent is not in dispute. The fact that the second respondent, who was also a party in the proceedings before the court below from which this original petition arose, is the biological daughter of the petitioner and the respondent is also not in dispute. She is now aged 7 years. She is a school going child. Though it appears that in execution proceedings, the petitioner had taken up a plea of no means to satisfy the decree, the pleadings in this writ petition and OPFC.1722/11 8 attendant materials are eloquent to the fact that he has business activities and has sufficient income, including from different transactions of commercial nature. We think it would be uncharitable to Bhamini and her daughter who is now sick, if we were to express anything against them, when we look at the bills that the petitioner claims to have paid in the Lakeshore Hospital to support the treatment of Bhamini’s daughter. The amounts reflected by those bills are sizable. While the petitioner says that he paid those amounts, we cannot take also in the same breath that he has no funds to pay the biological daughter who is still a child and also pay off his wife the dues under the decree. 16.With the aforesaid, we are satisfied that no ground of injustice is demonstrated in the case in hand, though there are controversies as to whether a particular lawyer had appeared or not and still further, whether a particular lawyer had changed sides. Those issues could be ignored when we look at the totality of the facts, which now point OPFC.1722/11 9 only to the need that the petitioner ought to satisfy the decree, instantly. 17.As already noticed, the petitioner has paid a total amount of Rs.1,80,000/- by now. We would have found no way to come with any further indulgence since, as of now, he has not even complied with the conditional interim order in full. Yet, the unfortunate health situation of the daughter of Bhamini persuade us to be a little compassionate in that regard, only on account of her health status. Nothing else really points in favour of the petitioner. Hence, by way of indulgence, we give the petitioner the liberty to pay off the remaining amounts in three equal instalments, payable on or before the 20th of every month commencing from September, 2011 to avoid penal distress action. If there is default in making payment of any such instalment, the execution proceedings shall forthwith be enforced. The family court will place the case on the execution side on all working days succeeding the 20th of every month from OPFC.1722/11 10 September, 2011 onwards, until the decree is satisfied in terms of this judgment. The original petition is ordered accordingly. We also record that the biological child of the petitioner, born through the respondent, in whose favour also the impugned order inures, is not party to this case. In the very peculiar facts and circumstances of this case, we desist from making an order of costs in favour of the respondent. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- K.SURENDRA MOHAN, Judge. kkb.