IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 OP (FC).No. 2114 of 2011(R) --------------------------- MC.261/2010 of FAMILY COURT, THIRUVALLA .................... TIONER ------------------------------ MANJESH @ SUJITH, AGED 32 YEARS, SUNIL BHAVANAM, ELAMANOOR 23 RD KUTTY, ADOOR TALUK PATHANAMTHITTA DISTRICT. BY ADV. SRI.P.A.CHANDRAN SRI.V.RAVEENDRAN RESPONDENT(S): ---------------------- 1. SOBHANA @ ASHA, AGED 23 YEARS, W/O. MANJESH, PUTHUVELLI MURUPPEL VEEDU, KALLELI ARUVAPPULAM, PATHANAMTHITTA DISTRICT. 2. JOBIN (MINOR), S/O. MANJESH, PUTHUVELLI MURUPPEL VEEDU, KALLELI, ARUVAPPULAM (MINOR IS REPRESENTED BY THE 1ST RESPONDENT, MOTHER). THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 15/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PETITION M.C.NO.261/2010 ON THE FILE OF THE FAMILY COURT, THIRUVALLA. EXT.P2 TRUE COPY OF THE ORDER DTD.31.12.2010 OF THE FAMILY COURT, THIRUVALLA IN M.C.NO.261/2010. EXT.P3 TRUE COPY OF THE NOTICE IN CMP NO.57/2011 ISSUED UNDER SECTION 128 CR.P.C. EXT.P4 TRUE COPY OF THE CMP NO.57/2011 IN MC NO.261/2010 ON THE FILE OF THE FAMILY COURT, THIRUVALLA. TRUE COPY p.s.to judge THOTTATHIL B.RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. ------------------------------------------- O.P.(FC) No.2114 of 2011 ------------------------------------------- Dated this the 15th July, 2011 JUDGMENT Thottathil B.Radhakrishnan, J Having regard to the nature of the order being issued hereunder notice to respondents dispensed with preserving their right seek rehearing of this matter, if aggrieved by the directions contained herein. 2. This Original Petition is filed challenging an order in a proceeding initiated before the Family Court in terms of Section 125 Cr.P.C. A statutory revision is available against the impugned order. Because it is an ex parte order, the petitioner could have also moved to have it set aside. However, the petitioner's allegation is that the case was listed on 3.12.2010 and the order was pronounced on 31.12.2010 without permitting him, who is the respondent before the court below to seek legal assistance and contest the matter. In the light of this stand, we called for the lower court records. We find that the counter petitioner in the proceedings before the court below was present on O.P.(FC)No.2114/2011 2 3.12.2010. There is nothing in the minutes of proceedings of the court below to indicate that there was any application in accordance with law to permit representation through an advocate. The case was adjourned to 21.12.2010. On that date, the counter petitioner was not present. Hence he was set ex parte and the case was adjourned to the next date for evidence. Proof affidavit was filed and acting on that, the impugned final order was issued. We see no illegality in the procedure. Yet, we are inclined to think that the petitioner before us, who is the counter petitioner before the court below is to be given an opportunity before the court below to have the final order set aside. We, therefore, direct that as of now the impugned Ext.P2 order will be treated as an interim maintenance order and the counter petitioner will be at liberty to apply for setting aside the final order by treating Ext.P2 as a final order for such purpose only. The result of this is that the petitioner may apply before the court below to have Ext.P2 ex parte order set aside, however that, he will be liable to pay at the rate fixed in Ext.P2, i.e. Rs.1200/- to the first respondent herein and Rs.800/- to the second respondent herein as monthly maintenance O.P.(FC)No.2114/2011 3 allowance from 21.10.2010, the date of the petition before the court below. This will be an interim arrangement to be regulated by further orders that the Family Court may issue as regards interim maintenance. We further order that the petitioner before us will deposit all arrears due in terms of the aforesaid before the court below within a period of tree weeks from now. We direct the petitioner to appear before the court below on 8.8.2011. The court below will proceed further with the matter as may be sought for by the petitioner and pass orders only after giving opportunity of hearing to both sides. If the petitioner before us does not move the Family Court in terms of the directions herein, Ext.P2 will be treated as final and this O.P.(FC) would stand dismissed. Ordered accordingly. Communicate a copy of this judgment to the first respondent on behalf of the second respondent also. A further copy shall also be communicated to the counsel who was appearing for the first respondent (petitioner before the court below) viz.Adv.Mammen Pappy Adenth, V.Pappy Associates, Maruthethu Bldg. Main Road, Pathanamthitta. Transmit the lower court records forthwith to the court O.P.(FC)No.2114/2011 4 below along with the copy of the judgment. Issue copy to the petitioner on usual terms. sd/- THOTTATHIL B.RADHAKRISHNAN JUDGE sd/- K.SURENDRA MOHAN JUDGE true copy P.S.TO JUDGE css/