IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 Mat.Appeal.No. 300 of 2009() ---------------------------- AGAINST THE ORDER DATED 19/12/2008 IN IA 3091 & 3092/2007 IN OP.1048/2003 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): APPELLANT/PETITIONER/RESPONDENT ---------------------------------------------- SAJU V. PANICKER, S/O.VISWANADA PANICKER, MUTTADA PUTHEN VEEDU, MUTTADA, THIRUVANANTHAPURAM, REP. BY HIS POWER OF ATTORNEY HOLDER OMANA AMMA, W/O.VISWANADA PANICKER. BY ADV. SRI.R.V.SREEJITH RESPONDENT(S): PETITIONER ------------------------- AATHIRA, D/O.AMBIKA, ARUN BHAVAN, NEAR ALAN FELD MAN PUBLIC SCHOOL, KIZHAKKUMBHAGAM, KAZHAKKUTTAM, THIRUVANANTHAPURAM. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * Mat.Appeal No.300 of 2009 ---------------------------------------- Dated this the 2nd day of July 2009 J U D G M E N T BASANT,J The petitioner/husband was the respondent in O.P.No.1048/03 before the Family Court, Thiruvananthapuram. In that petition, respondent/wife has claimed maintenance at the rate of Rs.2,000/- per mensum for herself and return of 70 sovereigns of gold ornaments which was allegedly retained by the appellant/husband. That petition though file in 2003 dragged on and the appellant herein did not even filed a written statement. Marriage is admitted. At long last, the appellant was set ex parte and an order was passed on 15/6/2007 directing the appellant to pay an amount of Rs.2,000/- per mensum as maintenance for his wife and to hand over 70 sovereigns of gold ornaments or its value. 2. The appellant filed an application to set aside the ex parte order and by the impugned order dated 19/12/2008, the learned Judge of the Family Court had dismissed the said application also. Mat.Appeal No.300/09. 2 3. Respondent has been served. There is no representation for the respondent. The learned counsel for the appellant submits that the appellant had engaged a counsel and was remaining at his place of employment abroad with the supreme confidence that his counsel will look after his interest properly. But unfortunately the counsel did not. And it was in these circumstances that he was set ex parte. It is prayed that a lenient view may be taken and the appellant may be granted an opportunity to contest the proceedings. 4. We have perused the ex parte order as also the impugned order dismissing the application to set aside the ex parte order. We take note of the fact that the claim for maintenance was filed as early as in 2003 and till now the written statement has not been filed. Marital tie is admitted. No contention is raised to resist the claim for maintenance so far. 5. We are satisfied, in these circumstances, that the impugned order can be set aside and an opportunity can be granted to the appellant to contest the proceedings subject of course to very strict terms which will ensure that the appellant is not resorting to this attempt to resist the claim only for purchasing time. Appropriate conditions must, in these Mat.Appeal No.300/09. 3 circumstances, be insisted. 6. In the result, a) This Mat.Appeal is allowed. b) Impugned order is set aside subject to conditions. c) The impugned order shall stand set aside and the Family Court shall dispose of O.P.No.1048/03 afresh on condition that the appellant deposits the entire amount due under the impugned ex parte order as maintenance payable to the respondent till the date of deposit on or before 31/8/2009. If such amount is deposited, the court below shall consider whether the amount can be released to the respondent as interim maintenance and pass appropriate orders. If the court finds that the amount need not be released to the respondent, the amount shall be retained in fixed deposit such that the principal amount along with interest accrued can be released to the successful party after afresh disposal of O.P.No.1048/03. 7. Parties shall appear before the Family Court on 07/09/2009. If deposit has not been made, the Family Court shall make record of that fact and thereupon the impugned order shall continue to remain in force. Mat.Appeal No.300/09. 4 8. The respondent has not entered appearance before us. If the respondent does not appear before the Family Court on 07/09/2009, the Family Court shall issue fresh notice to the respondent at the expense of the appellant herein. The Family Court shall ensure that the O.P is disposed of afresh as expeditiously as possible, at any rate, within a period of two months from 31/8/2009. (R.BASANT, JUDGE) (M.C.HARIRANI, JUDGE) jsr // True Copy// PA to Judge Mat.Appeal No.300/09. 5 Mat.Appeal No.300/09. 6 R.BASANT & M.C.HARIRANI, JJ. .No. of 200 ORDER/JUDGMENT 18/06/2009