| FCA 29 / 2013 | FCASR 28194 / 2011 |
|
THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY
AND
THE HON’BLE SRI JUSTICE K.G.SHANKAR
F.C.A.No.29 of 2013
JUDGMENT : (Per Hon’ble Sri Justice LNR,J)
The marriage between the appellant and respondent took place on 13-03-2003. However, they fell apart and
the respondent filed two O.Ps.
O.P.No.626 of 2006 was filed under Section 18 of Hindu Marriage Act, (for short ‘the Act’) for maintenance at the rate of Rs.10,000/- per month against the appellant in the Court of Family Court, Vijayawada.
She has also filed O.P.No.519 of 2007 in the same Court, under Section 13 of the Act, for divorce.
O.P.No.519 of 2007 was decreed on 18-02-2010 and the decree became final.
Thereafter, an ex parte decree was passed in O.P.No.626 of 2006 on 09-12-2010 granting maintenance at the rate of Rs.5000/- per month to the respondent.
The appellant filed I.A.No.1482 of 2011 under Order 9 Rule 13 C.P.C., with a prayer to set aside the ex parte decree dated 09.12.2010. He pleaded that his failure to attend the Court on that day was on account of a massive meeting that was held in the place, which is said to have blocked the access to the Court.
The trial Court allowed the I.A., through order, dated 23-03-2011 on condition that the appellant deposits arrears of interim maintenance that have accrued upto 15-04-2011.
The appellant feels aggrieved by the said condition. Hence, this appeal.
Heard Sri P. Venkataswamy, learned counsel for the appellant and M/s. G.Sudha, learned counsel for the respondent.
This case presents certain peculiar features. Though both the petitions under Sections 13 and 18 of the Act were filed at the same time, the one filed under Section 18 of the Act was numbered first and the other one was numbered almost one year later. However, the petition filed under Section 13 of the Act was disposed of on 18-02-2010 and the other O.P., was kept pending. The trial Court could have dealt with the matter of maintenance or alimony while granting divorce. O.P.No.626 of 2006 was decreed ex parte on 09-12-2010.
The trial Court was also impressed with the reason assigned by the appellant as to his failure to attend the Court.
However, the condition is a bit onerous.
Added to that,
the appellant as well as the respondent are said to have married subsequent to the divorce between them.
The feasibility of granting interim maintenance to the respondent at this stage does not exist.
We are of the view that the ends of justice would be met, if the appellant is required to make a deposit of Rs.1,00,000/- to the credit of the O.P., making it subject to the result of the same.
Hence, the FCA is partly allowed modifying the order under appeal to the effect that the appellant shall make a deposit of Rs.1,00,000/- (Rupees One lakh only) to the credit of O.P.No.626 of 2006 and the same shall be kept in fixed deposit initially for a period of one year. The trial Court shall dispose of the O.P., on merits as early as possible and the manner in which the amount shall be dealt with, would depend upon the outcome of the O.P.
The miscellaneous petition filed in this appeal shall also stand disposed of. There shall be no order as to costs.
_______________________
L. NARASIMHA REDDY, J.
_______________________
K.G.SHANKAR, J.
Dt:01.04.2013
rds/jsu
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