Hamza vs Asiya

R. Basant, J.—This appeal is directed against an order passed by the Family Court, Manjeri directing the appellant to pay amounts to the respondent, his wife.

Marriage is admitted. The respondent-wife in the petition filed by her claimed past maintenance as also future maintenance. She further claimed return of 28 sovereigns of gold ornaments belonging to her and in the alternative to pay to her the present value of such ornaments. She further contended that an amount of Rs. 40,000/- which was entrusted to her husband and which was misappropriated by him is also liable to be returned.

The Original Petition was received on file. Notice was issued. Petitioner appeared before the court through a power of attorney. He was not available for counselling. He did not later, appear before court. No written statement/objections were filed also.

The learned Judge of the Family Court, in these circumstances set the appellant ex parte. The respondent/claimant filed an affidavit to substantiate her claim. Accepting the averments in the affidavit filed by the respondent, the learned Judge of the Family Court proceeded to pass the impugned order. Past maintenance was directed to be paid at the rate of Rs. 2,000/- per mensem (total amount Rs. 72,000/- ie; 2,000 x 12 x 3). Future maintenance was directed to be paid at the rate of Rs. 3,000/- per mensem. The appellant was further directed to repay an amount of Rs. 40,000/-, which he had allegedly misappropriated. There was also a direction to pay interest at the rate of 6% per annum from the date of the petition till the date of realisation. The claimant was also held entitled to cost of the proceedings.

The appellant surprisingly did not file any application to get the ex parte order set aside. Instead, he has chosen to file this appeal before this Court. There is a delay of 56 days in filing the appeal also. The delay has already been condoned and the appeal has been admitted.

The learned Counsel for the appellant submits that the appellant has been denied an opportunity to raise and substantiate his contentions. He wants to raise a contention that he had divorced the respondent and she is not entitled to any maintenance after the date of divorce. He hence prays that an indulgent further opportunity may be granted to the appellant to raise his contentions and substantiate the same after setting aside the ex parte order.

The appellant is unable to show any reason as to why he did not move the court below to get the ex parte order set aside. On the materials presently available, there is nothing to indicate even remotely that the appellant was wrongly set ex parte. The unchallenged evidence of the respondent on affidavit was available before court below. The pleadings of the respondent also had not been controverted. The evidence tendered in the form of affidavit has not been challenged. In these circumstances, we do not find any merit in the challenge raised on merits against the impugned order.

The learned Counsel for the petitioners prays, the learned Counsel for the respondent does not oppose the said prayer and we are satisfied that an indulgent further opportunity can be granted to the appellant in the peculiar facts and circumstances of the case to raise and substantiate his contentions. But, we agree with the learned Counsel for the respondent that for such an indulgent further opportunity, the appellant must be put to appropriate terms. On merits, we are not convinced at all that the impugned order warrants interference. But, we are persuaded to agree that the appellant can be given an opportunity to raise and substantiate his contentions.

In the result,

(a) this appeal is allowed, subject to conditions.

(b) The impugned order shall stand set aside and the learned Judge of the Family Court shall dispose of O.P. No. 150/04 afresh in accordance with law, after giving the parties opportunity to adduce all such evidence as may be necessary on condition that:

(i) the appellant deposits an amount of Rs. 2 lakhs before the Family Court on or before 22.7.2009.

(ii) If such amount is deposited, the same shall be released to the respondent. Whatever be the final outcome, the respondent shall not be liable to return such amount.

(iii) Parties shall appear before the court below on 24.7.2009.

(iv) If the amount is deposited as directed, the learned Judge of the Family Court shall release the said amount to the respondent and shall proceed to dispose of O.P. No. 150/04 as expeditiously thereafter as possible - at any rate, within a period of six months from 24.7.2009.

(v) If the amount is not deposited as directed, the learned Judge of the Family Court shall make record of the same on 24.7.2009 and thereupon the impugned order shall continue to remain in force.

(vi) As agreed, it is directed that the impugned order shall not be executed till 24.7.2009.

Issue copy of this judgment today itself.