IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 RPFC.No. 126 of 2008 ------------------------------ (C.M.P. NO. 2706/2007 AND 2707/2007 IN M.C. NO. 162/2007 OF THE FAMILY COURT, MALAPPURAM) ..................... REVISION PETITIONER/PETITIONER/RESPONDENT: -------------------------------------------------------------------------- SABU JOHN, S/O ISO JOHN, MANNUR VADAKKETHIL, KOLAKANDAM, NILAMBUR P.O., MALAPPURAM DISTRICT. BY ADV. SMT.K.V.RASHMI. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. LISSY VARGHESE, D/O VARGHESE, CHAKKASSERIL HOUSE, MUNDAPPADAM, CHUNGATHARA. 2. BIYULA, D/O SABU JOHN, CHAKKASSERIL HOUSE, MUNDAPPADAM, CHUNGATHARA. ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM FOR R1 & R2. THIS REV.PETITION (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18/07/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- R.P.F.C.No.126 of 2008 ---------------------------------------- Dated this the 18th day of July 2008 O R D E R The petitioner has suffered an ex parte order directing him to pay maintenance at the rate of Rs.1,600/- to his wife. By the same order, the amount of maintenance awarded to his child has been enhanced from Rs.450/- to Rs.600/- per mensum under Section 127 Cr.P.C. The petitioner is liable to pay such maintenance/enhanced maintenance from 07/03/2007. As on today, an amount of Rs.21,000/- [(Rs.1,600/- + Rs.150) x 16 months = Rs.21,000/-] is payable. Towards this the petitioner has already paid an amount of Rs.9,000/-, it is submitted. 2. The petitioner had entered appearance before the Family Court and had filed a counter statement also. But he did not appear thereafter and it was hence that he was set ex parte. The petitioner filed applications to set aside the ex parte order and to condone the delay in filing such application to set aside the ex parte order. There was a delay of 96 days. The learned Magistrate rejected both the applications by the impugned common order. The petitioner has now come to this court with the prayer that the impugned order may be set aside and the petitioner may be granted an opportunity to substantiate his contentions. R.P.F.C.No.126/08 2 3. The learned counsel for the petitioner submits that the petitioner has serious contentions to be advanced in the matter and that the mere fact that he happened to be absent may not result in forfeiture of his right to contest the proceedings raising appropriate grounds. 4. Respondent has entered appearance. The respondent opposes the application stoutly. The learned counsel for the respondent submits that as a matter of fact the petitioner is guilty of contumacious negligence in the proper conduct of his case. In these circumstances, the luxury of a further opportunity may not be granted to the petitioner, it is submitted. 5. Having considered all the relevant circumstances, I am satisfied that the interests of justice shall be served ideally by allowing the petition to set aside the ex parte order subject to appropriate conditions. Though the petitioner appears to be guilty prima facie of contumacious negligence, I am satisfied that imposition of appropriate conditions shall satisfy the ends of justice. 6. In the result, a) This R.P.F.C is allowed. b) Impugned ex parte order dated 10/8/2007 in M.C.No.162/2007 shall stand set aside on condition that the R.P.F.C.No.126/08 3 petitioner deposits before the learned Magistrate the entire amounts payable under the impugned order as also under the earlier order granting maintenance to the child on or before 01/09/2008. The entire amount due till 31/8/2008 shall be paid by 01/09/2008. c) The parties shall appear before the learned Judge of the Family Court on 02/09/2008. If the entire amounts are deposited as directed, the same shall forthwith be released to the claimants. The impugned order shall then stand set aside and the learned Judge shall proceed to dispose of M.C.No.162/2007 afresh in accordance with law. 7. The learned Judge must proceed to dispose of M.C.No.162/2007 as expeditiously thereafter at any rate within a period of two months from 02/09/2008. If the amount is not deposited as directed, the learned Judge of the Family Court shall make record of that fact on 02/09/2008 and thereafter the impugned ex parte order in M.C.No.162/2007 shall continue to remain in force. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge R.P.F.C.No.126/08 4 R.P.F.C.No.126/08 5 R.BASANT, J R.P.F.C.No.145 of 2008 ORDER 18/7/2008