IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 RPFC.No. 193 of 2007() ---------------------- MC.112/2005 OF FAMILY COURT, KALPETTA .................... REVISION PETITIONER/CR.PETITIONER ---------------------------- MANOJ, S/O.PEETHAMBARAN, AGED 32 YEARS, PUTHANVEETIL HOUSE, IRUKANI, POOTHADI AMSOM DESOM, WAYANAD DISTRICT. BY ADV. SRI.N.J.ANTONY RESPONDENTS: ------------- 1. SUJATHA, AGED 28 YEARS, D/O. VILASINI, KOMBAMPOYIL HOUSE, MOTHAKKARA (MANIYIL), KOTTARAKKUNNU POST, WAYANAD DISTRICT. 2. SARANYA, AGED 5 YEARRS, D/O. MANOJ, REPRESENTED BY MOTHER SUJATHA (1ST RESPONDENT). 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R3 BY PUBLIC PROSECUTOR SRI. AMJAD ALI SMT.CELINE JOSEPH FOR R1 & 2 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 30/07/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 193 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of July, 2008 O R D E R The petitioner has suffered an order directing payment of maintenance under Section 125 Cr.P.C. The order was passed not after setting the petitioner ex parte, but on a day when the petitioner was not present. Evidence of the claimants alone was adduced. Maintenance is claimed for the wife and two children and admittedly one of the two children is now in the custody of the petitioner. Maintenance has hence been awarded only to claimants 1 and 3 at the rate of Rs.750/- p.m. 2. According to the petitioner his absence on 2.11.2006 was on account of reasons beyond his control. He was not set ex parte by the court and the impugned order shows that he has not been ex parte. In these circumstances the petitioner is not able to apply for setting aside the ex parte order. Leniency may be shown and an opportunity may be given to substantiate his R.P.F.C.No. 193 of 2007 2 defence that the wife is living in adultery. Therefore he is not liable to pay maintenance to the wife. 3. The learned counsel for the petitioner submits that subject to any appropriate terms which are reasonable, this Court may give the petitioner a further opportunity to raise his contentions, adduce evidence and advance his arguments. The court below may be directed to dispose of the case afresh. 4. I take note of the submission that the date on which the case was posted for evidence was a day of harthal and that is why the petitioner could not appear before the learned Judge of the Family Court. In the facts and circumstances, a lenient view can be taken and the petitioner can be granted an opportunity to raise and substantiate his contentions, subject to appropriate terms and conditions. 5. In the result: (a) This revision petition is allowed, subject to conditions. (b) The impugned order shall stand set aside and the learned Judge of the Family Court shall dispose of M.C. 112 of 2005 afresh in accordance with law on the following terms and conditions. R.P.F.C.No. 193 of 2007 3 (i) The petitioner shall on or before 15.9.2008 deposit the entire amount payable to the child as also one-third of the amount due to the wife under the impugned order till that date (including amounts if any paid). If such payment is made, the learned Judge of the Family Court shall forthwith release the same to the claimants and shall proceed to dispose of M.C.112 of 2005 afresh in accordance with law, giving the petitioner opportunity to cross examine PW1 and opportunity to both parties to adduce evidence. (c) The parties shall appear before the Family Court on 16.9.2008. If the amounts are not deposited as directed , the learned Judge of the Family Court shall make a report of that fact and thereupon the impugned order shall continue to remain in force and shall be enforcible. (R. BASANT) Judge tm