' Brief facts of the case are that Respondent No. 2 filed a suit for dissolution of marriage, recovery of maintenance allowance, dowry article, delivery expenses and 5 tola gold ornaments with the averments that she was married with the petitioner on 31.10.2010 for a consideration of Rs.2000/- as dower money which was not paid; that out of this wedlock, a daughter namely Maham was born on 06.08.2012; that delivery expenses of Rs.30,000/- were borne by parents of the plaintiff; that 5 tola gold ornaments were gifted to the plaintiff by the defendant which are still in his custody; that the relations between the parties remained cordial in the beginning, however, later on, the petitioner-defendant expelled the plaintiffs from his house in October, 2011; that no maintenance was ever paid to the plaintiffs.
2. Summons were issued and service through publication was also made but none appeared on behalf of the petitioner, therefore, he was proceeded against ex parte, evidence of Respondent No. 2 was recorded and the suit of the respondents was decreed vide ex parte judgment dated 23.01.2014 in the terms that the marriage was dissolved on the basis of khula, the plaintiff was held entitled to recover dowry articles as per list Ex.P1/2 except gold ornaments 5 tola or a sum of Rs.
100,000/- in lieu thereof and also for delivery charges to the extent of Rs. 15,000/-. Vide said judgment, Plaintiff No. 1 was awarded maintenance allowance @ Rs.2500/- and Plaintiff No. 2 @ Rs.5000/-per month from the date of institution of the suit. The respondent then filed an execution petition wherein notices were issued to the petitioner. On receipt of notice in the execution petition, the petitioner filed application for setting aside ex parte judgment and decree dated 23.01.2014. On 27.02.2014, the learned Judge Family Court passed the following order in the application of the petitioner: "As the decree was passed ex-parte and by relying upon the affidavit annexed with the application, the operation of the exparte judgment and decree is, hereby, suspended till the next date of hearing subject to payment of Rs. 15,000/- as well as monthly maintenance for minor respondent at the rate of Rs.5000/- per month as decreed (which shall be adjustable at the time of final decision of the case) alongwith a surety bond for remaining decretal amount on behalf of petitioner/ judgment debtor for the satisfaction of this Court."
3. The order dated 27.02.2014 has been challenged in this writ petition mainly on the ground that the learned Judge Family Court has no jurisdiction to impose condition of payment of cost of Rs.15,000/- as well as interim maintenance allowance in the application for setting aside ex parte judgment and decree. On the other hand, learned counsel for the respondent has vehemently opposed this writ petition and supported the impugned order. His whole emphasis is on the point that all modes of service were adopted for service of the respondent but he did not appear before the Court, therefore, the Court was left with no option but to pass an ex parte judgment and decree.
4. Arguments heard. Record perused.
5. The impugned order reflects that ex parte judgment and decree dated 23.01.2014 passed by learned Judge Family Court was suspended on an application filed by the petitioner for setting aside the ex-parte judgment and decree but at the same time, the condition was imposed to make payment of Rs. 15,000/- as well as monthly maintenance allowance for the minor respondent @ Rs.5,000/- per month as decreed.
6. Perusal of the impugned order reflects that the condition imposed by learned family Court for suspension of the impugned judgment and decree is not sustainable as under Section 9(6) of the learned Family Courts Act, 1964, the family Court has no power to impose any cost in application for suspending ex parte judgment and decree. Furthermore, the payment of interim maintenance allowance of Rs.5,000/- is also not sustainable as the provision of Section 17-A of the Act ibid comes into field only when the written statement is filed by the defendant. Keeping in view the pleadings as well as circumstances of the case, the family Court, after having filed written statement by the defendant, can pass the order for interim maintenance allowance, therefore, the impugned order dated 27.02.2014 is set aside to the extent of imposition of condition of payment of Rs. 15,000/- as well as payment of interim maintenance allowance for the minor respondent @ Rs.5000/- per month. This writ petition is allowed in the said terms.
(R.A.) .