IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 16TH JANUARY 2009 / ]6TH POUSHA 1930 Crl.MC.No. 219 of 2009() ------------------------ CMP 826/08 IN CMP 551/08 IN MC.293/2000 OF FAMILY COURT, KOZHIKODE .................... PETITIONER(S): RESPONDENT ------------------------- NOORUDHEEN, S/O.ABDURAHIMAN, HAJIVARAKATH VEEDU, P.O.NADAKKAVU, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): PETITIONER/STATE ------------------------------- 1. HAJIRA, D/O.USMAN,KAMBIVALAPPIL VEEDU, P.O.NADAKKAVU, KOZHIKODE. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 219 of 2009 - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of January, 2009 O R D E R The petitioner had suffered an order under Section 125 Cr.P.C. Later the claimant/wife approached the Family Court with an application under Section 127 Cr.P.C. to enhance the claim. In that petition the petitioner was set ex parte. Directions were issued for payment of enhanced maintenance. The petitioner appeared before the Family Court to set aside the ex parte order. That petition was indulgently allowed by the learned Judge of the Family Court with a direction that the petitioner must deposit/pay an amount of Rs.3,000/- as cost to the claimant/wife on or before the next date of posting. Payment was not effected. On 30.9.2008 the learned Judge of the Family Court dismissed the application to set aside the ex parte order on the ground that the cost has not been paid. 2. The petitioner claims to be aggrieved by the impugned order. What is the grievance? It is contended that the quantum of cost awarded is excessive. I find no merit in this contention. Crl.M.C.No. 219 of 2009 2 In the circumstances of the case the cost awarded does appear to me to be absolutely reasonable. It is alternatively contended that the petitioner may be granted some further time to make amends and pay cost already ordered. The dismissal of the petition was on 30.9.2008. The counsel prays that a lenient view may be taken. The petitioner is sick. On account of his inability to pay maintenance the petitioner was compelled to go to prison in execution of the order. All the relevant circumstances may be taken into consideration and the petitioner may be granted reasonable time further to make the payment and avoid the ex parte order. 3. Having considered all the relevant circumstances I am satisfied that a lenient view can be taken and the petitioner can be granted time to pay the cost amount awarded along with a further amount of Rs.500/- to compensate the respondent for the loss suffered by her. 4. Considering the nature of the relief which I propose to grant, I am satisfied that it is not necessary to wait for issue and return of notice to the respondent. 5. In the result: a) This Crl.M.C. is allowed subject to conditions. Crl.M.C.No. 219 of 2009 3 b) The ex parte order passed against the petitioner under Section 127 Cr.P.C. shall stand set aside on condition that the petitioner deposits an amount of Rs.3,500/- before the Family Court on or before 27.1.2009. c) The petitioner shall appear before the Family Court on 28.1.l2009 and satisfy the learned Magistrate that the amount of Rs.3,500/- has been paid as directed. If the amount is paid, the same shall forthwith be released to the respondent and the Judge shall proceed to dispose of the application under Section 127 Cr.P.C. as expeditiously thereafter as possible. d) If the deposit of the amount is not reported on 28.1.2009 by the petitioner, the Family Court shall make record of the same, whereupon the impugned order shall continue to remain in force. 6. Hand over the order to the learned counsel for the petitioner. The Registry shall communicate the order to the Family Court forthwith. (R. BASANT) Judge tm