DAVIS Vs. BINDHU

JUDGEMENT

(1.) THIS is an application filed by the petitioner challenging Ext.P3 order passed by the Family Court, Thrissur in M.P.No.580/2013 in M.C.No.417/2011 with consequential reliefs under Article 227 of Constitution of India.

(2.) IT is alleged in the petition that the first respondent along with respondents 2 & 3 filed M.C.No.417/11 before the Family Court Thrissur seeking maintenance under Section 125 of Code of Criminal Procedure. According to the first respondent, the petitioner married her and in that relationship two children were born who were shown as respondents 2 & 3 and thereafter, he had neglected to maintain them and she is unable to maintain herself and the children and so filed the application for maintenance under Section 125 of Code of Criminal Procedure. According to the petitioner, he never married the first petitioner and the children were not his children and so he has no liability to pay maintenance. But, however, he did not appear when summons was served on him and so the Family Court has passed an exparte order of maintenance allowing the petition, directing the petitioner to pay maintenance to the respondents 1 to 3. When execution proceedings was initiated by filing Ext.P7 petition by the respondents 1 to 3 for realization of the amount, petitioner filed Ext.P1 & P2 petition to set aside the exparte order along with condonation of delay of 377 days in filing of the application. The learned Family Court Judge allowed the application on condition of deposit of Rs.50,000/ - towards the arrears of maintenance within one month from the date of order failing which the petition will be dismissed with cost of the respondents. This order is being challenged by the petitioner by filing this application.

(3.) COUNSEL for the petitioner submitted that since he is disputing the marriage itself, the lower court was not justified in directing him to pay part of the maintenance amount as condition for setting aside the exparte order.