IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 RPFC.No. 390 of 2009() ---------------------- MC.243/2008 of FAMILY COURT, KOTTARAKKARA .................... PETITIONER/1ST RESPONDENT: ---------------------------------------------- THANKAMANI, PANUVELIL VEEDU, PAVITHRASWARAM, THAZHAM, KARIMPIN PUZHA (PO). BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL), BY ADV. SRI.A.R.DILEEP, SRI.GEORGE RAJU, SMT.SURYA SASI. RESPONDENT(S): PETITIONER & 2ND RESPONDENT: -------------------------------------------------------------------------------- 1. BHAVANI AMMA, PANUVELIL VEEDU, PAVITHRASWARAM, THAZHAM, KARIMPIN PUZHA (P.O.). 2. RAJENDRA PRASAD, AYILADATH VEEDU, PAVITHRASWARAM, THAZHAM, KARIMPINPUZHA. R1 BY ADV. SRI.K.V.ANIL KUMAR THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- R.P.(F.C.)No.390 of 2009 ------------------------------- Dated this the 7th day of October, 2010. O R D E R The 1st counter petitioner in M.C.No.243/08 of the Family Court, Kottarakkara is the revision petitioner herein, as she is aggrieved by the order dated 3.10.2009 issued by the Family Court u/s.125 of Cr.P.C., directing her to pay maintenance to the revision petitioner @ Rs.400/- per month from 30.9.2008 onwards less the interim maintenance already given. 2. I have heard the learned counsel for the petitioner as well as the respondents. 3. The main grounds taken by the petitioner to assail the above order is that, no evidence was recorded, as required by the procedure in a trial of a summons case. The above submission is not controverted by the counsel appearing for the respondent. In view of S.126(2) of Cr.P.C., the evidence in any proceedings, under Chapter IX shall be taken in the presence of the person against whom an order of payment of maintenance is 2 R.P.(F.C.)No.390 of 2009 proposed to be made or ones personal attendance is dispensed with in the presence of his pleader and shall be recorded in the manner prescribed for a summons case.” S.274, coming under chapter XXIII, which deals with record in summons cases and inquiries. In the present case, the court has not complied with the procedure contemplated by S.254 of Cr.P.C. also. In the light of the above provisions, especially when the claim of the claimant in the court below is disputed by the revision petitioner and an objection was filed, it was imperative on the part of the court below to record the evidence if any, including the revision petitioner who is the 1st counter petitioner therein. But in the present case, no such course was adopted. Therefore, I am unable to sustain the order impugned in this revision petition. 4. However I can not ignore the fact that the claimant before the courts below is none other than the mother of the counter petitioners, including the revision petitioner and the claimant, at the time of filing the petition, was at the age of 85 years. It is also pertinent to note that, during the pendancy of 3 R.P.(F.C.)No.390 of 2009 the above M.C., the Family Court has directed the counter petitioners to pay interim maintenance @ Rs.400/-. Therefore the said direction can be continued and the petitioner can be further directed to pay half of the arrears as on today, out of the interim maintenance ordered by the court below. In the result, this revision petition is disposed of setting aside the order dated 3.10.2009 and remitting back the same to the Family Court, Kottarakkara, for fresh disposal in accordance with the procedure contemplated by sub-section 2 of s.126 of Cr.P.C. and the same shall be disposed of as expeditiously as possible at any rate within 3 months from the date of receipt of this order, from the Registry of this court. The revision petitioner herein is directed to deposit half of the total arrears out of the interim maintenance ordered by the court below and the same shall be deposited within 2 weeks from today and on deposit of the said amount, the claimant before the court below is free to withdraw the same, by filing an application for the same and on such petition, the same shall be released forthwith. It is also 4 R.P.(F.C.)No.390 of 2009 directed that, the revision petitioner shall continue to pay the future interim maintenance as ordered by the court below, till the disposal of the case. Accordingly, with the above observations and directions, this revision petition is disposed of. V.K.MOHANAN, Judge. ami/