Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 21ST DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945 AGAINST THE ORDER/JUDGMENT MC 354/2021 OF FAMILY COURT,KOLLAM REVISION PETITIONER/S: RENJITH MOHAN, AGED 33 YEARS, S/O .JAYAKUMARI, MUNDAZHIKATHU VEED, NJARAKKAL CHERRY THRIKKADAVUR VILLAGE, KOLLAM, NOW RESIDING AT KUNJARIKATHU VEED, PAALLIMUKKU CHERRY, THRIKKARUVA VILLAGE, PARAVUR P.O, KOLLAM DISTRICT, PIN - 691301 BY ADVS. M.T.SURESHKUMAR MANJUSHA K SREELAKSHMI SABU RESWIN A. KHADIR RESPONDENT/S:
1 ANILA, AGED 23 YEARS, D/O. SREELATHA, AIKKARA KIZHAKKATHIL, MARUTHADI, KANNIMEL CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM TALUK, KOLLAM, PIN - 2 ARUSH, S/O ANILA, AGED 1 YEAR, AIKKARA KIZHAKKATHIL, MARUTHADI, KANNIMEL CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM TALUK, KOLLAM,PIN - 691581(REPRESENTED BY 1ST RESPONDENT) BY ADVS. Mohan Lal B ASWIN V. NAIR(K/1019/2017) AJAY S. KOSHY(K/003202/2022) P.S.PREETHA(K/883/1998) BLESSY MARY SEBASTIAN(K/003114/2023) JAYAPRABHA ARJUN(K/001757/2023)
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
The revision petition is filed questioning the legality and propriety of the impugned order passed by the Family Court, Kollam in M.C.No.354/2021 setting the revision petitioner ex-parte and allowing the application
by directing the revision petitioner to pay the respondents monthly maintenance allowance @ Rs.8,000/- from the date of petition (06.12.2021). The revision petitioner was the respondent and the
respondents were the petitioners before the Family Court.
Brief facts
2. The respondents - wife and child of the revision
petitioner - had filed Annexure-A1 application under Sec.125 of the Code of Criminal Procedure (in short, “Code”) claiming monthly maintenance allowance from the revision petitioner @ Rs.15,000/- and Rs.10,000/- respectively.
3. The revision petitioner's case in the revision petition is that the Family Court has passed the
impugned order without serving notice on him. Annexure-B Diary proceedings reveals that the Family Court has, after declaring deemed service of notice on the revision petitioner, set him ex-parte and passed the impugned order. Annexure-A3 certificate shows that the revision petitioner is working as a Civil Police Officer since 07.03.2020 in Idukki and not at Pallivasal. The respondents have deliberately shown the address of the revision petitioner at Kollam knowing fully well that he was employed in Idukki. Therefore, there was no proper service of notice in Annexure A-1 application. It is without noticing the above aspect the Family Court has
passed the ex-parte impugned order. The impugned order
suffers from illegality, impropriety and irregularity and is liable to be set aside. Hence, the revision petition.
4. Heard; Sri.M.T.Suresh Kumar, the learned counsel appearing for the revision petitioner and Sri.B.Mohanlal, the learned counsel appearing for the respondents.
5. Is there any illegality or impropriety in the impugned order ?
6. A perusal of the records reveals that the
respondents had filed Annexure-A1 application under Section 125 of the Code on 06.12.2021. The address of the revision petitioner in the application is the same address as shown in the instant revision petition. The revision petitioner does not have a case that he is not a permanent resident of the address shown in the cause title of the revision petition and the cause title of Annexure A1 application. Nonetheless, the postal cover containing the summons Annexure A1 application was
sent and got returned with an endorsement as “unclaimed”. It is based on the said endorsement, the Family Court declared deemed service of notice on the revision petitioner, set him ex-parte and then passed the impugned order.
7. It is conceded by both sides that there are
connected cases between the parties pending before the Family Court. Therefore, the learned Judge of the Family Court ought to have directed the respondents to serve a copy of the application on the learned counsel appearing for the revision petitioner in the connected matters or directed notice to be served in the present address of the revision petitioner.
8. It is trite law that a case is to be decided on its merits, rather than on default.
9. In the above conspectus, I am of the view that the
revision petitioner has to be granted one more opportunity to contest the case on its merits. However, I find that the revision petitioner has directly approached this Court and filed a revision petition, without filing an application before the Family Court, to set aside the ex- parte order.
10. Thus, I am inclined to conditionally allow the revision petition by directing the revision petitioner to pay half the arrears of maintenance as per the impugned
order to the respondents, which shall be treated as
interim maintenance, which would do complete justice to both sides.
11. I adopt the above course because under the
second proviso to sub-section (1) of Section 125, an application for interim maintenance can be filed along with the main application and the same has to be disposed of within 60 days from the date of filing as per the mandate under the third proviso to sub-section (1) of Section 125 of the Code.
12. In the case on hand, Annexure-A1 application was filed on 06.12.2021. The Family Court passed the impugned order on 16.11.2022 and the present revision petition is coming before me on 21.11.2023, that is approximately two years after the date of filing Annexure-A1 application. Even assuming that the revision petitioner had contested the case on merits, the respondents had a right to recover the interim maintenance from the revision petitioner, subject to the result of the main application. In the result:
(i) The revision petition is allowed.
(ii) The impugned order dated 16.11.2022 in M.C.No.354/2021 is set aside, subject to the following conditions:
(a) The revision petitioner shall deposit an
amount of Rs.75,000/- (Rupees Seventy five thousand only) on or before 21.12.2023 and a further amount of Rs.75,000/- (Rupees Seventy five thousand only) on or before 21.01.2023 before the Family Court as interim maintenance allowance.
(b) If the above amount is deposited, the same shall be released to the respondents in equal shares and in accordance with law.
(c) If the revision petitioner fails to deposit the ordered amount, the Family Court shall proceed with Annexure A6 execution application.
(iii) The revision petitioner and the respondents shall file affidavits of disclosure of assets and liabilities as laid down in Rajnesh v. Neha and Anr. [2020 (6) KHC 1]
(iv) The revision petitioner shall file his written objection to Annexure-A1 application, if so advised within 30 days from today.
(v) As the application is of the year 2021, the Family Court shall make an endeavour to dispose of the main application in accordance with law and as expeditiously as possible.
(vi) Needless to mention, the payment of above ordered
amount shall be subject to the final outcome of M.C.No.354/2021. sd/- C.S.DIAS, JUDGE rkc/21.11.23 APPENDIX OF RPFC 384/2023 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE PETITION IN MC 354 OF 2021 BEFORE THE FAMILY COURT ,KOLLAM FILED UNDER SECTION 125(1)(A) AND (B) OF CR.PC BY THE 1ST RESPONDENT DATED 6-12- Annexure A2 TRUE COPY OF THE 'B' DAIRY EVIDENCING THE COURT PROCEEDINGS FROM 6-12-2021 TO -16- 11-2022 BEFORE THE FAMILY COURT, KOLLAM IN MC 354 OF 2021 Annexure A3 TRUE COPY OF THE CERTIFICATE DATED 24-7- 2023 ISSUED BY THE ASSISTANT COMMANDER, H Q CAMP, IDUKKI Annexure A4 CERTIFIED COPY OF THE ENVELOP RETURN TO THE FAMILY COURT, KOLLAM IN MC 354 OF 2021, AS UNCLAIMED BY THE PETITIONER WITH ENDORSEMENT DATED 24-2-2022
Annexure A5 TRUE COPY OF THE RETURNED ENVELOP WITH
HEARING NOTED AS 14-11-2022 IN MC
Annexure A6 TRUE COPY OF THE PETITION FILED UNDER 128OF CR.PC NUMBERED AS CMP NO. 66 OF 2023 IN MC NO.354/2021 BEFORE THE FAMILY COURT, KOLLAM, DATED 2-5-2023 Annexure A7 TRUE COPY OF THE B DAIRY IN CMP NO. 66 OF 2023 IN MC NO. 354 OF 2021 Annexure A8 CERTIFIED COPY OF THE ENVELOP RETURNED TO THE FAMILY COURT IN CMP NO. 66 OF 2023, WITH ENDORSEMENT NO SUCH ADDRESSEE WITH HEARING DATED 29-5-2023 Annexure A9 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE 1ST RESPONDENT IN MC 354/2021 BEFORE THE FAMILY COURT, KOLLAM