IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 WP(C).No. 9809 of 2009(R) ------------------------- AGAINST THE ORDER DATED 13/03/2009 IN IA.207 & 208/2009 IN OP.163/2008 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S)/RESPONDENT: --------------- RIYAS ALIAS RIYASUDEEN, AGED 28 YEARS, S/O.MUHAMMED, PALLITHAZHATHU HOUSE, KARIMBUZHA, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON RESPONDENT(S)/PETITIONER: --------------- JASEERA, AGED 24 YEARS, D/O.KOORIYATTU VATTAMPARAMBIL MOOSA, MULLYAKURUSSI, KEEZHATTOOR DESOM, PERINTHALMANNA TALUK, PATTIKKADU P.O. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- W.P.(C) NOS. 9809 & 9843 OF 2009 --------------------------------------------------------- Dated this the 26th day of March, 2009 JUDGMENT Basant, J. These Writ Petitions are filed by the respondent in proceedings before the Family Court, Malappuram, who was set ex parte and ex parte orders directing payment of maintenance and amounts were passed. The claimants are the wife and children of the petitioner herein. The wife and children claimed maintenance under Section 125 Cr.P.C. The wife claimed amounts and value or ornaments retained by the petitioner herein. 2. The petitioner was served and he appeared before the Family Court in both matters. Attempts were made to conciliate and settle the dispute. Counselling and conciliation did not bear fruit and the matter was posted before the court. When the matter came up before the Family Court, the petitioner was absent. There was no representation. Counter statement was not filed also. In these circumstances, the learned Judge of the Family Court set the petitioner ex parte in both the Maintenance Case W.P.(C) NOS.9809 & 9843/2009 2 and the Original Petition. Accepting the proof affidavits of the claimant/wife, both proceedings were ordered. The petitioner was directed to pay maintenance under Section 125 Cr.P.C. at the rate of Rs.1,500/- per mensem for the wife and Rs.700/- and 500/- respectively for the two children from the date of the application. In the Original Petition, a direction was issued to pay a total amount of Rs.6,50,000/- along with interest and costs. 3. Long later, the petitioner filed applications to set aside the ex parte orders in both the Maintenance Case and the Original Petition. There was a delay of 148 days in filing such applications. Applications were filed to condone the delay also. 4. Though the applications were opposed, the Family Court by the impugned orders indulgently allowed those applications, but on condition that the entire amount of maintenance as well as 10% of the amount ordered in the Original Petition must be deposited by 27.3.2009. 5. The petitioner claims to be aggrieved by the impugned orders. What is the grievance? According to the petitioner, the matter was posted to 26.5.2008 and on that day the petitioner, on account of reasons beyond W.P.(C) NOS.9809 & 9843/2009 3 his control, was unable to appear before the court. He was sick and indisposed. He had allegedly informed his counsel. There was omission on the part of the counsel to inform the court and it was in these circumstances that he happened to be set ex parte in both the proceedings. As to why and how there was a delay of 148 days, no satisfactory or convincing explanation whatsoever was offered. Inspite of all this, the learned Judge of the Family Court felt that there is need for a contested disposal of the applications on merits and indulgently, though not satisfied about the reasons urged for condonation of delay and for setting aside the ex parte orders, proceeded to pass the impugned order, subject to conditions. 6. The challenge is against the conditions imposed. We are not going into the question whether an R.P.(F.C.) or an appeal under Section 19 of the Family Courts Act ought to have been filed or not. We are satisfied that in the nature of the contentions raised, the same can be considered in this Writ Petition. 7. We are not persuaded to agree that the learned Judge of the Family Court had gone wrong in setting the petitioner ex parte or in proceeding to pass the ex parte orders, accepting the proof affidavits filed W.P.(C) NOS.9809 & 9843/2009 4 by the claimant/wife in both the matters. Though there was no satisfactory and convincing reasons to explain the absence of the petitioner on the date of posting of the case or to justify the prayer for condonation of the enormous delay, the learned Judge of the Family Court indulgently granted the petitioner a further opportunity to contest the claim, subject to conditions. We are satisfied that the conditions imposed are absolutely fair, reasonable and just. They do not, according to us, warrant any interference. The petitioner who is recipient of the indulgence of the court has no reason to complain about the conditions imposed. 8. However, we take note of the request of the learned counsel for the petitioner and are satisfied that the petitioner can be granted 45 days further time from 27.3.2009 to pay the amount and comply with the impugned order. We further direct that if the amounts are deposited, the maintenance amount can be released to the claimants straightaway and appropriate orders regarding adjustment can be passed, if necessary, in the Maintenance Case when it is finally disposed of. 10% of the amount ordered in the Original Petition, if deposited, shall be retained in Fixed Deposit by the court such that the amount can be released to the successful party after fresh disposal of the Original Petition. W.P.(C) NOS.9809 & 9843/2009 5 9. These Writ Petitions are, in these circumstances, dismissed subject to the above observations. 10. Hand over a copy of this judgment to the learned counsel for the petitioner. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.P.(C) NOS.9809 & 9843/2009 6 R. BASANT & C.T. RAVIKUMAR, JJ. W.P.(C)NOS.9809 & 9843/2009 JUDGMENT 26th March, 2009 W.P.(C) NOS.9809 & 9843/2009 7