High Court of KeralaSingle Judge2023-12-13Revision petition allowed; impugned maintenance...

R.P (FC) No.335 of 2023

Case / Petition Number:RPFC No.335 of 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias, J.
Judgment Date: 2023-12-13
Court Decision / Holding: The revision petition is allowed. The impugned order in MC 112/2020 is set aside, subject to the condition that the revision petitioner continues to pay maintenance to the first respondent (wife) at Rs.4,000 per month from the petition date until disposal of MC 112/2020, treated as interim maintenance. Arrears to be paid in two instalments on 13.01.2024 and 13.02.2024, with credit for Rs.50,000 remitted earlier. Upon deposit, the Family Court shall dispose of MC 112/2020 expeditiously. If the conditions are not met, the impugned order stands confirmed and respondents may execute it. Bench cautions timely compliance and seeks merited adjudication of merits with interim relief balancing both sides.
Final Disposition: Revision petition allowed; impugned maintenance order set aside subject to conditions and interim maintenance; arrears to be paid in instalments; disposal of MC 112/2020 to follow on compliance.

Parties to the Case

Appellants / Petitioners

Abdulla K. @ Abdulla Kunji K.

Respondents

Wife of revision petitioner
Son of revision petitioner

Legal Representation & Advocates

Counsels for Petitioners

• P.K. Nijoy
• C. Prabitha
• Rejoice B. Chembakasseril

Counsels for Respondents

• Abdul Raoof Pallipath
• Prajit Ratnakaran
• E. Mohammed Shafi
• K.R. Avinash (Kunnath)

Case Synopsis & Summary

R.P (FC) No.335 of 2023 is a revision petition filed before the High Court of Kerala challenging a Family Court, Kannur, order in MC 112/2020 directing maintenance to the respondents (wife and son) from 13.3.2020 at Rs.4,000 and Rs.3,000 per month respectively. The revision petitioner, Abdulla K. @ Abdulla Kunji K., had contested the ex-parte nature of the Family Court proceedings, alleging that the COVID-19 pandemic prevented him from appearing and arguing on merits. He sought one last opportunity to contest the case on merits and to set aside the ex-parte order; he also filed CMP No.2/2022 under Sec.126(2) CrPC. The Family Court had previously found him to be earning around Rs.50,000 per month and had directed maintenance accordingly. The High Court notes the respondent's claim for maintenance and acknowledges the need to adjudicate on merits, especially given the ex-parte circumstances caused by the pandemic. Citing the Supreme Court’s principles in Koushalya v. Mukesh Jain, 2020 KHC 6766, the court allows the revision petition, granting one final opportunity to contest on merits while subjecting the petitioner to interim maintenance as ordered. It directs arrears to be paid in instalments, credits earlier remitted are to be considered, and disposition of MC 112/2020 to be expedited if conditions are met. The decision reinforces merit-based adjudication and timely relief balancing the parties’ interests.

Provisions of Law Cited

Section 125(1) CrPCSection 126(2) CrPC

Legal Doctrines & Maxims

Principles laid down by the Supreme Court in Koushalya v. Mukesh Jain, 2020 KHC 6766 (interim/last opportunity to contest; balancing interim maintenance to ensure justice)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that he was put ex-parte due to the COVID-19 pandemic and was not afforded an opportunity to contest on merits. He seeks one last chance to defend the case, arguing that he has valid contentions and that the ex-parte order should be set aside so that the matter can be adjudicated on merits. He references the need for a fair opportunity and equitable treatment given pandemic-related disruptions.

Contentions of Respondents

The respondents sought maintenance under Sec.125 CrPC and defended the Family Court’s interim/permanent maintenance award, urging that the petitioner had the means (reported earnings around Rs.50,000 per month) and should continue to provide support; they rely on the maintenance order and opposed setting aside the ex-parte order if not properly justified.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Koushalya v. Mukesh Jain	2020 KHC 6766	Positive	Cited to justify the principle of granting a last opportunity and treating interim maintenance to balance justice in ex-parte scenarios, aligning with the Supreme Court’s guidance cited in the judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

1 R.P (FC) No.335 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023 / 22ND AGRAHAYANA, 1945 RPFC NO. 335 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT MC 112/2020 OF FAMILY COURT, KANNUR REVISION PETITIONER/S: ``` ``` ABDULLA K. @ ABDULLA KUNJI K. AGED 51 YEARS BASHEER MANZILK, HADAD NAGAR, BEKAL KUNNU, BEKAL P.O., KASARAGODE DISTRICT, PIN - 671319 BY ADVS. P.K.NIJOY C.PRABITHA REJOICE B.CHEMBAKASSERIL 1HAIRUNNEESA K.T.,AGED 49 YEARS "C.P.K. HOUSE", PURAVUR, KANHIRODE P.O., KANNUR DISTRICT, PIN - 670592 2MUHAMMED RINAS K. AGED 21 YEARS "C.P.K. HOUSE", PURAVUR, KANHIRODE P.O., KANNUR DISTRICT, PIN - 670592 BY ADVS. ABDUL RAOOF PALLIPATH PRAJIT RATNAKARAN(K/497/1995) E.MOHAMMED SHAFI(K/1057/1993) K.R.AVINASH (KUNNATH)(K/1364/2003) ``` ## **`RESPONDENT/S:`** ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 13.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.P (FC) No.335 of 2023 ## **C.S DIAS,J.** **--------------------------R.P (FC) No.335 of 2023** **----------------------------Dated this the 13[th] day of December, 2023** ## **ORDER** The revision petition is filed challenging the order in M.C No.112/2020 of the Family Court, Kannur, directing the revision petitioner to pay the respondents – his wife and son - monthly maintenance allowance @ Rs.4,000/- and Rs.3,000/- respectively, from the date of petition (13.3.2020). The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. ## **Brief facts** 2. The respondents had filed the application under Sec.125 (1) of the Code of Criminal Procedure (in short, 3 R.P (FC) No.335 of 2023 “Code”), against the revision petitioner, for monthly maintenance allowance @ Rs.10,000/- each. It was their case that, the revision petitioner was married to the first respondent on 25.8.1996 and the second respondent was born in their wedlock. The revision petitioner has refused to maintain the respondents despite being a vehicle broker and earning Rs.50,000/- per month. Even though the revision petitioner entered appearance through his counsel and filed vakalath, due to the COVID-19 pandemic, he could not contest the proceedings. He was set ex-parte and the impugned order was passed. The revision petitioner filed CMP No.2/2022 to set aside the ex-parte order. But, the Family Court, by order dated 20.4.2023 dismissed the said application. The revision petitioner has not got an 4 R.P (FC) No.335 of 2023 opportunity to contest the case on merits. He has valid contentions in the matter. Hence, the revision petition may be allowed, to permit the revision petitioner one last opportunity to contest the case on merits. 3. Heard; Sri.Nijoy P.K, the learned counsel appearing for the revision petitioner and Sri.Abdul Raoof Pallipath, the learned counsel appearing for the respondents. 4. The respondents had filed M.C No.112/2020 before the Family Court for an order of maintenance. The materials on record substantiate that the revision petitioner was set ex-parte and the impugned order was passed. Although the revision petitioner filed CMP No.2/2022, under Sec.126 (2) of the Code, to set aside the ex-parte order, the Family Court, by order dated 5 R.P (FC) No.335 of 2023 20.4.2023, dismissed the application on the finding that the revision petitioner has not stated sufficient reasons to set aside the ex-parte order. 5. It is trite, Courts should always make an endeavour to consider and dispose of an application on its merits rather than on default. It may be true there was laches on the part of the revision petitioner in contesting the proceedings because he had entered appearance through Counsel, but failed to contest the proceedings. Therefore, the Family Court cannot be found fault with. Nevertheless, I am of the definite view that the revision petitioner should be granted one more opportunity to contest the case on merits, as the last chance, but subject to the condition that he pays maintenance to the first respondent as per the impugned 6 R.P (FC) No.335 of 2023 order, which will be deemed to be treated as interim maintenance as per the principles laid down by the Hon’ble Supreme Court in **Koushalya vs. Mukesh Jain** [2020 KHC 6766], which in turn will do complete justice to both sides. 6. In the result, - (i) The revision petition is allowed. (ii) The impugned order in MC No.112/2020 is set aside, subject to the condition that the revision petitioner continues to pay maintenance allowance @ Rs.4,000/- to the first respondent from the date of petition till the disposal of MC No.112/2020, which shall be treated as interim maintenance allowance. 7 R.P (FC) No.335 of 2023 (iii) The revision petitioner shall pay the arrears of maintenance due as per this order to the first respondent in two instalments falling on 13.1.2024 and 13.2.2024. (iv) While calculating the arrears of maintenance, the Family Court shall give credit to the amount of Rs.50,000/- remitted by the revision petitioner, pursuant to the interim order dated 25.8.2023 passed by this Court. (v) On the revision petitioner depositing the arrears of maintenance as ordered above, the Family Court shall release the same to the first respondent, in accordance with law. (vi) If the revision petitioner deposits the amount as ordered above, the Family Court shall dispose of MC 8 R.P (FC) No.335 of 2023 No.112/2020, in accordance with law and as expeditiously as possible. (vii) If the revision petitioner fails to comply with the conditions ordered above, the impugned order shall stand confirmed and the respondents would be at liberty to execute the same. sd/- sks/13.12.2023 **C.S.DIAS, JUDGE**