Sheeja. D.K. Accountant vs P. Nalini and Sheeba D.K.

K. Harilal, J.—The Revision Petitioner is the 2nd counter petitioner in M.C.No. 366/2011 on the files of the Family Court, Thalassery. She is the younger daughter of 1st respondent, the mother who filed the above M.C. u/s 125(1) Cr.P.C., claiming maintenance from the Revision Petitioner and the 2nd respondent herein, the elder daughter. According to the 1st respondent, she is aged 63 years and she is not able to do any work and whereby unable to maintain herself; whereas her children earn sufficiently; but they have been neglecting the mother and refused to pay maintenance allowance. It is also alleged that the 2nd respondent fraudulently made a document and snatched away her property. Now she is depending on her brother for her livelihood. The Revision Petitioner is employed as an Accountant in a Co-Operative Bank and the 2nd respondent is employed abroad. In the above circumstance, the 1st respondent filed petition under seeking maintenance from her daughter.

Going by the impugned order, it could be seen that though the Revision Petitioner and the 2nd respondent filed a counter affidavit disputing the claim, subsequently, they were absent and set ex-parte. The court below, after considering the evidence available on record, directed the Revision Petitioner and the 2nd respondent to pay maintenance at the rate of Rs. 2,500/- per month. This order is under challenge in this Revision Petition.

The learned counsel appearing for the Revision Petitioner submits that the averments in the petition are not true and correct. Though they have denied the false allegations raised in the petition in their counter, they could not prove it as they were set ex-parte. It is also submitted that they were deligently prosecuting the case but unfortunately, the counsel could not appear on the day when the case was posted for evidence. The non-appearance was not willful. They have sufficient materials to disprove the case set forth by the 1st respondent in the claim petition. More importantly, the 1st respondent had suppressed the fact that she is getting Rs. 7,500/- per month as family pension after the death of her husband. The learned counsel appearing for the respondents also agreed that the impugned order was passed ex-parte. Thus indisputably, the Revision Petitioner had no opportunity to adduce evidence as she was set ex-parte, on her absence. In the above circumstances, though I cannot find any fault with the court below in passing the impugned order after setting the respondents ex-parte, I take a lenient view on a different perspective that an adjudication on merits after providing sufficient opportunity to adduce evidence is more desirable than passing an order after setting opposite party ex-parte, particularly when suppression of material facts are alleged by the opposite party. Consequently, I am inclined to set aside the impugned order subject to the conditions given hereunder.

i. The order under challenge will stand set aside on condition that the Revision Petitioner deposits entire arrear within a period of one month from the date of receipt of this order and the same can be given to the 1st respondent.

ii. The Revision petitioner shall continue to pay Rs. 2,500/- per month as ordered in the impugned order.

iii. If the Revision Petitioner complies with the 1st condition, the impugned order will stand set aside. The court below will take the M.C. again on the files, proceed in accordance with law and dispose of the case, within a period of four months thereafter.

In the event of failure, the impugned order will continue in force as executable.