IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 Mat.Appeal.No. 745 of 2011 ----------------------------------- IA.2171/2010 IN OP.335/2009 of FAMILY COURT, MALAPPURAM .................... APPELLANT/PETITIONER/RESPONDENT: ---------------------------------------------------------- AMEER, S/O.AHAMMED KUTTY, CHUNDAKUNNUMMAL (H), IRUPATHONNE ARU MILE, PUTHUPADI PO, PRUVALLI ENAPUZHA AMSOM, KOZHIKODE DIST., REP. BY P/AT HOLDER C.K.NAVAS, S/O.AHAMMEDKUTTY CHUNAKKUNNUMMAL, IRUPATHONNE ARU MILE, PUTHUPPADI PO, PERUVALLI ENAPUZHA AMSOM, KOZHIKODE DISTRICT. BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT/RESPONDENT/PETITIONER: ------------------------------------------------------------ HAFSTH, D/O.ISMAYIL MOULAVI, PARAMBATTU (H), KOOTTILANGADI PO, MALAPPURAM DIST-676 506. BY ADV. SRI.P.VENUGOPAL (1086/92) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15/11/2011 ALONG WITH RPFC NO.162 OF 2010 AND RPFC NO. 163 OF 2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. ---------------------------------------- R.P(FC).Nos.162 & 163 OF 2010 & Mat.A.No.745 OF 2011 ---------------------------------------- Dated this the 15th day of November, 2011 JUDGMENT Thottathil B.Radhakrishnan, J. 1.The captioned revisions and appeal are between the same parties. The couple has a child. In O.P.335/09, the wife sued for value of ornaments and other movables; and, also for past maintenance, for a period prior to that covered by the proceedings in M.C.No.339/09, from which the revisions arise. 2.The Family Court allowed the MC case and the O.P. as per different orders passed ex parte. The husband applied to have both those orders set aside. Those applications were also decided as per separate orders. The application to set aside the order in the MC case was allowed on condition that the entire arrears covered by the ex parte order in that case be deposited. As regards the O.P., the court below dismissed that MA.745/11 & con. cases 2 application on the ground that the inordinate delay of 447 days is not explained. 3.The appeal is filed by the husband against the refusal to set aside the ex parte order in O.P.335/09. He is before us with two revisions; one challenging the order imposing the condition and the other challenging the refusal to condone the delay in filing the application to set aside the ex parte MC order, if the conditions prescribed therein are not complied with. 4.It was argued on behalf of the husband that the refusal to set aside the ex parte decree in the money claim (OP.335/09) results in manifest miscarriage of justice and that the husband ought to have been given an opportunity to contest that matter on its merits. As regards the revisions, it was argued that the condition imposed, requiring deposit of the entire amount covered by the ex parte order, is unjust. MA.745/11 & con. cases 3 5.Learned counsel for the wife argued that there was no shred of material before the court below to condone the delay in applying to set aside the ex parte order in O.P.335/09. It is said that the husband was in India when he was served with notice of the original proceedings. He did not appear, but later, let abroad, from where, he authorised the power of attorney holder to prosecute the litigation. It is also submitted that even after he went abroad, he once came to India and married another woman and again left abroad. 6.We find formidable substance in the view taken by the learned Judge in allowing the application to set aside the ex parte order in MC.339/09, wherein, he took the view that though the application could be dismissed for want of evidence, considering the need for a contested disposal in the main matter, the ex parte order needs to be set aside. We find a pearl of wisdom in this; more particularly because the ultimate victim of the litigation is a child aged 11 years now. Even if any divorce is to be recognised or even if the husband is MA.745/11 & con. cases 4 entitled to marry a second woman during the currency of his marriage with the woman involved in this litigation, the rights of the child vis.a.vis. the parents is something to be taken care of with abundant caution and care taking note of the parens patriae jurisdiction since that appears to be the command of the Constitution to the courts having regard to the scheme of Parts III, IV and IVA therein. That jurisdiction in re the child of a couple before a court need not, necessarily, be invoked by any party through any application. We see that the delay in filing the application to set aside the ex parte order in the MC case was much shorter when compared to the delay in filing the application to set aside the ex parte order/judgment in O.P.335/09. We note that both matters, relating to the same couple and child, were before the same court and though dealt with separately, were decided by the same learned Judge. While we are quite impressed by the submissions on behalf of the wife that the husband treated the litigation as a mere luxury and the present exercise through the power of attorney is only to evade the liability, we are of the view that the MA.745/11 & con. cases 5 enormous claim made towards the value of gold ornaments, movables and also on other counts are matters which require determination on merits and any apparent injustice owing to the delay can be balanced by imposing appropriate order for costs while allowing an adjudication on merits, by vacating the ex parte order. In our view, the court below ought to have adopted such an approach in so far as O.P.335/09 is also concerned. 7.By an interim order at the stage of admission of the appeal, the husband was to pay an amount of Rs.1 lakh to the wife before she was to be invited to this Court to contest these proceedings. Though with a little delay, he has paid that amount as per a demand draft. This means that an amount of Rs.1 lakh covered by the orders has been paid. The remaining outstanding in terms of the order in the MC case would be about Rs.39,500/- as of now, approximately. We round it off at Rs.40,000/- for the purpose of this order. We direct the husband, appellant/ revision petitioner, to pay a further MA.745/11 & con. cases 6 amount of Rs.95,000/- to the wife within a period of one month from now. This means that an amount Rs.1,95,000/- will stand paid towards the maintenance component, under the MC order or under the order in OP.335/09. He will also pay a further amount of Rs.10,000/- as costs to the wife in connection with MA.745/11, that is, as costs to have the ex parte decree in the O.P. set aside. 8.If amounts as afore-directed are paid within the time limit fixed above, the impugned order in MA.745/11 will stand set aside and the orders impugned in the two revisions will stand modified to that effect. It is clarified that no enlargement of time would be granted and if amounts are not paid as directed in this order, this appeal and revisions would stand dismissed automatically and the Family Court shall aid the wife enjoy the fruits of the ex parte order without delay. Thereupon, the court below will take up MC.339/09 and OP.335/09 and list them simultaneously for trial. We leave it to the court below to MA.745/11 & con. cases 7 consider whether there should be a joint trial of the proceedings. The appeal and the revisions are ordered accordingly. The parties are directed to mark their appearance before the court below on 20.12.2011. Sd/- THOTTATHIL B. RADHAKRISHNAN Judge Sd/- C.T.RAVIKUMAR Judge kkb.17/11.