HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No. 1581 of 2001, F.C.A. No.187 of 2005 and C.R.P. No.143 of 2007 DATED: 20.04.2010 C.M.A. No.1581 of 2001 Between: V. Anand Kumar .. Petitioner And Viswabharati .. Respondent F.C.A. No.187 of 2005 Between: V. Anand Kumar .. Petitioner And 1. M.Viswabharati 2. Master Spandan 3. Kumari Surya .. Respondents C.R.P. No.187 of 2005 Between: M. Viswabharati .. Petitioner And V. Anand Kumar .. Respondent COMMON JUDGMENT: (Per Hon’ble Sri Justice V. Eswaraiah) As the point involved in these three appeals is inter-related, these matters are taken up together for disposal by this common judgment. The appellant-V.Ananda Kumar in both C.M.A. No.1581 of 2001 and F.C.A. No. 187 of 2005 is the husband of the 1st respondent- Viswabharati, who is the petitioner in C.R.P.No.143 of 2007. C.M.A.No.1581 of 2001 is directed against the order dated 02.05.2001 passed in O.P. No.182 of 1998 by the learned Judge, Family Court, Secunderabad, whereby the petition filed by the respondent-wife under Section 9 of the Hindu Marriage Act, 1955 (for short “the Act”), for restitution of conjugal rights, was allowed. F.C.A.No.187 of 2005 is directed against the judgment dated 17.08.2005 delivered in O.S. No.13 of 1999 on the file of the learned Judge, Family Court, Secunderabad, whereby the suit filed by the respondent-wife and her two children under Sections 18 and 20 of the Hindu Adoption and Maintenance Act was ordered granting maintenance of Rs.3,000/- p.m. to the respondent-wife and Rs.1,500/- p.m. each to her children from the date of filing the suit. For the sake of convenience, the parties are referred to as “the petitioner-husband” and “the respondent-wife”. It is stated that the petitioner-husband filed suit in O.S. No.167 of 2002 on the file of the Judge, Family Court, Hyderabad seeking declaration that the document dated 13.09.1991 is not a valid document of marriage and also for declaration that there is no martial relationship between the petitioner-husband and the respondent-wife. Insofar as the children are concerned, who are respondent Nos.2 and 3 in F.C.A.No. 187 of 2005, it is stated that after scrutinizing the evidence on record and necessary proof, the trial Court held that both the children were born through the petitioner-husband alone. The suit filed by the petitioner-husband was decreed ex parte on 01.10.2003 in pursuance of the substitute service of notice taken out by him. The respondent-wife filed a petition to set aside the ex parte decree. Inasmuch as there was delay of 36 days in filing that petition she filed an application in I.A. No.1263 of 2004 seeking to condone the delay of 36 days, but the same was dismissed for default by order dated 23.08.2005. Then, the respondent-wife filed a petition to set aside the default order. Inasmuch as there was delay of 97 days in filing that petition, she filed an application in I.A. No.928 of 2005 seeking to condone the delay of 97 days, which was dismissed by the learned Judge, Family Court, Hyderabad by order dated 24.08.2006. Aggrieved by this order, the respondent-wife filed C.R.P.No.143 of 2007. Heard the learned counsel for both the parties and perused the material placed on record. V.Anand Kumar, who is the husband of Viswabharati, is present before this Court, and after elaborate arguments are advanced on both sides, the learned counsel for both the parties have fairly reconciled the matter and stated that it is always just and proper to settle the dispute with regard to the marriage of the petitioner-husband in the declaratory suit in O.S. No.167 of 2002 filed by the husband, but the fact remains that O.P. No. 182 of 1998 filed by the wife for restitution of conjugal rights was allowed. Therefore, Sri K.S. Murthy, learned counsel appearing on behalf of respondent-wife and her two children, submits that in view of the fact that O.P. No. 182 of 1998 filed by the wife was allowed, there cannot be any dispute with regard to the relationship between the parties as husband and wife. Insofar as the suit for maintenance in O.S. No. 13 of 1999 filed by the respondent- wife and two children is concerned, admittedly, the children were born through the petitioner-husband, as such, the petitioner-husband is under legal obligation to maintain his wife and also the children till they attain the age of majority. As the declaratory suit filed by the petitioner-husband was decreed ex parte, we are of the opinion that in personal matters like this instead of deciding the matters on contest, it is always desirable to afford reasonable opportunities to both the parties for resolution of the disputes after conducting free and fair trial. Therefore, the learned counsel for the petitioner-husband has fairly conceded that the application filed by the respondent-wife may be allowed by setting aside the ex parte decree in O.S. No.167 of 2002 subject to the condition of setting aside the judgment dated 17.08.2005 delivered in O.S. No. 13 of 1999 and order dated 02.03.2001 passed in O.P. No. 182 of 1998, by remanding them to the trial Court for trial and disposal of the three matters in accordance with law. In view of the above, C.R.P. No.143 of 2007 filed by the respondent-wife against the order dated 24.08.2006 passed in I.A. No.928 of 2005 in O.S. No.167 of 2002 is allowed, and the delay of 97 days in filing the petition under Order 9 Rule 13 CPC to set aside the default order dated 23.08.2005 in I.A. No.1263 of 2004 is condoned, and I.A. No.1236 of 2004 filed by the respondent-wife to condone the delay of 36 days in filing the application to set aside the ex parte decree in O.S.No.167 of 2002 also stands allowed. Consequently, the petition filed to set aside the ex parte decree in O.S. No.167 of 2002 is allowed and O.S. No.167 of 2002 is restored to its file, and the same is directed to be posted on 07.06.2010 before the trial Court for appearance of both the parties. C.M.A. No. 1581 of 2001, F.C.A. No.187 of 2005 are allowed setting aside the impugned order dated 02.05.2001 in O.P. No.182 of 1998 and the judgment dated 17.08.2005 in O.S. No.13 of 1999, and both O.P.No.182 of 1998 and O.S. No.13 of 1999 on the file of the Judge, Family Court, Secunderabad are remanded and transferred to the file of the learned Judge, Family Court, Hyderabad for a joint trial and disposal along with O.S. No.167 of 2002. Pending disposal of the aforesaid three matters the petitioner-husband - V.Ananda Kumar shall pay maintenance amount at the rate of Rs.2000/- per month in favour of each of the children till they attain majority. The maintenance payable to the children for the months of April and May, 2010 shall be paid by the 10th of May 2010 and the subsequent monthly maintenance shall be paid by 10th of every succeeding month. All the claims made by the respondent-wife and her children for maintenance amount and the claim made by her for restitution of conjugal rights are to be re- determined by the Judge, Family Court, Hyderabad and the maintenance payable shall be subject to adjustment of the payments. The amounts already deposited shall be subject to the result in the O.S. No.13 of 1999 filed for maintenance, which is to be determined afresh. The learned Judge, Family Court, Hyderabad shall decide O.P.No.182 of 1998 filed by the respondent-wife for restitution of conjugal rights and O.S. No.13 of 1999 filed by the respondent-wife and the children for maintenance along with O.S.No.167 of 2002 filed by the petitioner-husband, uninfluenced by any of the observations made by this Court, and dispose of these three cases within a period of six months from the date of receipt of a copy of this order. No costs. _______________ V. ESWARAIAH,J 20th April, 2010 ________________ B.N.RAO NALLA, J bcj