PRAKASH Y. Vs. DHANYA RAJAN AND ORS.

JUDGEMENT

(1.) THIS is an application filed by the petitioner who is a counter petitioner in MC No. 91/2013 on the file of the Family Court, Thiruvananthapuram for setting aside the Ext. P3 order passed by the Family Court under Article 227 of the Constitution of India.

(2.) THE case of the petitioner in the petition was that respondents herein are the wife and children of the petitioner and the marriage of the petitioner with 1st respondent was solemnised on 15.7.2002 and in that wed lock respondents 2 and 3 were born. Due to some misunderstanding between them, they started living separately and the children were with the 1st respondent. Since the petitioner did not provide maintenance, respondents filed MC No. 91/2013 before the Family Court, Thiruvananthapuram under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the Code), claiming maintenance for the 1st respondent herself and also on behalf of respondents 2 and 3 as their guardian evidenced by Ext. P1 petition. Since the petitioner did not appear, the family court passed an ex -parte order of maintenance directing the petitioner herein to pay maintenance of Rs. 3,000/ - per month to the 1st petitioner and Rs. 2,500/ - each per month to petitioners 2 and 3 from 29.4.2013 onwards. The petitioner filed Ext. P2 petition to set aside the ex -parte order along with delay condonation of 115 days delay in filing the application and after considering the evidence, the court below allowed the application on condition that the petitioner has to deposit 50% of Rs. 1,52,000/ - found to be arrears of maintenance as ordered by the court within 30 days from the order as per Ext. P3. This order is being challenged by the petitioner by filing this petition.

(3.) COUNSEL for the petitioner submitted that 1st respondent is working as a pharmacist and getting good income and the amount of maintenance awarded was beyond the capacity of the petitioner. According to him, he is prepared to take back the respondents and look after them properly provided if they come and live with him. According to him, 1st respondent deserted the petitioner and residing separately without any reasonable cause. So she is not entitled to get maintenance. He prayed for an opportunity to meet the case on merit.