IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 WP(C).No. 2450 of 2009(S) ------------------------- MC.230/1999 of FAMILY COURT,KOZHIKODE .................... PETITIONER(S): --------------- M.V.UNNIKRISHNAN, S/O.GOPALAN, MEETHALA VALAPPIL HOUSE, PO.EDAKKAD, EDAKKAD DESOM, KANNUR. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENT(S): --------------- 1. K.P.SHEEJA, D/O.SREENIVASAN, KAKKADATH P PALAT HOUSE, BEYPORE NORTH PO., KOZHIKODE. 2. SAYOOJ(MINOR), 7 YEARS, REP. BY 1ST RESPONDENT. 3. TAHSILDAR, KANNUR. BY GOVT. PLEADER SRI.R.LAKSHMI NARAYAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & C.T.RAVIKUMAR, JJ. ------------------------------- W.P.(C) No.2450 of 2009 ------------------------------- Dated this the 2nd February, 2009 J U D G M E N T Raman, J. This writ petition is filed challenging Exts.P5 and P6 orders. Ext.P5 is an order enhancing the maintenance to Rs.3000/= per month, in an application filed by the wife under Section 127 of Code of Criminal Procedure, after declaring the petitioner ex parte. Subsequently, the petitioner preferred an application to set aside the ex-parte order. But then also, neither the petitioner nor his counsel appeared, and, therefore, that petition was also dismissed for default, as evidenced by Ext.P6 order. The petitioner thereafter did not seek to review or to set aside that order, and thus Exts.P5 and P6 orders have become final. 2. Sri.T.Rajasekharan Nair, the learned counsel appearing on behalf of the petitioner, contended that non- W.P.(C) No.2450 of 2009 2 appearance of the counsel on the appointed day, when Ext.P6 order was passed, might be due to the fact that he would have been appearing in some other court. We cannot set aside an order on presumptions. Good grounds must be shown as explanation for non-appearance. Nothing prevented the petitioner or his counsel from filing a petition seeking a review or to restore the order, and no steps were taken before the court below in this regard. Even before this Court also, no affidavit or no reasons are stated to warrant an interference in Ext.P6 order. We are not in a position to go on to the merits of Ext.P5 order, because the only evidence was that of the petitioner, the respondent herein, seeking enhancement of maintenance. The petitioner also remained absent. In such circumstances, we cannot find fault with the court below in granting enhanced maintenance. 3. According to the petitioner, the wife got remarried and hence she is not entitled to receive any maintenance. If the remarriage is subsequent to Ext.P5 order, W.P.(C) No.2450 of 2009 3 necessarily, based on the change of circumstances, the petitioner can still apply to the Family Court for necessary modifications. In such circumstances, we dismiss the writ petition. However, this will not prevent or prejudice the right of the petitioner seeking to set aside Ext.P6 order or for modification of Ext.P5 order on good grounds being shown. P.R.RAMAN, JUDGE C.T.RAVIKUMAR, JUDGE. nj.