S.S. Biju Vs. Deepa R. and Ors. - (High Court of Kerala) (06 Mar 2019)

Court can impose a condition ordering payment of part of decree amount while exercising power under Order IX Rule 13 of CPC

MANU/KE/0679/2019

Family

The challenge involved in present appeal is that, the Family Court was not justified in having ordered payment of part of the decree amount, when his liability is yet to be finally determined in the Original Petition. According to learned counsel for the Appellant, Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) does not extent to the Court any power to order payment of any portion of the decree amount, other than to impose reasonable cost on the applicant as a condition for setting aside ex parte decree. The only question for consideration, is whether the condition imposed by the court below was harsh, unreasonable or onerous causing prejudice to the Appellant.

Law does not seem to prohibit the Court from imposing a condition ordering payment of part of the decree amount while exercising power under Order IX Rule 13 of the CPC. But the court has to be cautious enough to notice that the condition imposed on the party does not work out to be harsh and onerous to him. So far as this case is concerned, there is no dispute on marital relationship.

The sole ground on which liability for maintenance is disowned is that, the Appellant has been looking after the wife and children even when the litigation against him was pending. When the spousal relationship stands admitted, it naturally follows that the husband-cum-father has undeniable liability to maintain the wife and children under law.

The amount fixed by the impugned orders for payment to the Respondent appears to be quite reasonable. It is very difficult to assume that, the Court below has been harsh nor it imposed a condition which is onerous to the Appellant. The orders therefore, are liable only to be confirmed. In the result, impugned orders are sustained subject to the Appellant making payment of Rs. 50,000 to the Respondents within one month.

Tags : MAINTENANCE LIABILITY INTERIM MEASURE