IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 RPFC.No. 334 of 2007() ---------------------- MC.11/2006 of FAMILY COURT, THODUPUZHA .................... PETITIONER/COUNTER PETITIONER: -------------------------------------------------- P.VINCENT, AGED 33,S/O.LATE PAKYANATHAN, SOUTH STREET, OKKIRAN KOTTA P.O.,THIRUNALVELI DIST TAMIL NADU, NOW RESIDING AT C/O.NJANADURAI, MUNDUMALA 1ST DIVISION, SURYANELLI ESTATE, SURYANELLI P.O.,MUNNAR,CHINNAKKANAL VILLAGE, DEVIKULAM TALUK,SANTHAMPARA POLICE STATION,IDUKKI. BY ADV. SRI.JOICE GEORGE SRI.A.G.TISSARANT RESPONDENTS/PETITIONERS: --------------------------- 1. D. SANTHI, AGED 26 YEARS, W/O. P.VINCENT, RESIDING AT II DIVISION, UPPER SURYANELLI ESTATE, SURYANELLI P.O., CHINNAKKANAL VILLAGE, DEVIKULAM TALUK,IDUKKI DIST. 2. SARA, AGED 6 YEARS (MINOR), REPRESENTED BY HER MOTHER, D. SANTHI,AGED 26 YEARS W/O.P.VINCENT, RESIDING AT II DIVISION, UPPER SURYANELLI ESTATE, SURYANELLI P.O., CHINNAKKANAL VILLAGE, DEVIKULAM TALUK,IDUKKI DIST. 3. NISHA, AGED 3 YEARS (MINOR), REPRESENTED BY HER MOTHER, D. SANTHI,AGED 26 YEARS W/O.P.VINCENT, RESIDING AT II DIVISION, UPPER SURYANELLI ESTATE, SURYANELLI P.O., CHINNAKKANAL VILLAGE, DEVIKULAM TALUK,IDUKKI DIST. 4. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, COCHIN -31 ADV. SRI.A.C.DEVASIA FOR R1-3 SRI.T.J.MICHAEL FOR R1-3 PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------- R.P.(F.C.)No.334 of 2007 -------------------------------- Dated this the 4th day of December, 2009 ORDER The revision petitioner is the counter petitioner in M.C.No.11 of 2006 on the file of the Family Court, Thodupuzha. The respondents are wife and two children aged 26, 6 and 3 years respectively. They filed the above petition before the lower court under Section 125 of the Code of Criminal Procedure seeking an order to direct the revision petitioner to pay maintenance to the first respondent at the rate of Rs.2,000/- and to the second and third respondents at the rate of Rs.1,500/- each with an allegation that the revision petitioner married the first respondent on 12/2/1999 at C.S.I. Christ Church, Munnar and out of the wedlock respondents 2 and 3 were born and that the revision petitioner ill-treated the first respondent and they were deserted and they are devoid means for their maintenance. Whereas the revision petitioner is earning Rs.6,000/- per month as a driver and had got landed properties from where he had been getting an annual income of Rs.20,000/-. 2. The revision petitioner who accepted the notice remained exparte. Consequenlty, the petition was allowed R.P.(F.C.)No.334 of 2007 2 exparte. Thereupon the revision petitioner filed petition as Crl.M.P.No.9 of 2007 seeking an order to set aside the exparte order and allow the revision petitioner to defend the petition. That petition was allowed and the order granting maintenance was set aside. Petition was restored and the revision petitioner was given an opportunity to file counter and defend the proceedings. Again he remained exparte. The lower court on satisfying the claim basing upon the affidavit filed by the first respondent again allowed the petition exparte and the revision petitioner was directed to pay monthly maintenance at the rate of Rs.1,000/- each to the respondents. Assailing the legality, correctness and propriety of that order, this revision petition was preferred. 3. The main grievance for the learned counsel for the revision petitioner is that the revision petitioner who was a driver employed in interstate service was not given opportunity to defend the proceedings and that his absence was for the reason that on employment he had to go out of the State. Taking note that the revision petitioner, who was given an opportunity to defend the proceedings had not availed it, in fact, there is no much merit in the argument advanced by the learned counsel for R.P.(F.C.)No.334 of 2007 3 the revision petitioner. So also, the amount awarded appears to be reasonable. However without causing prejudice and hardship to the respondent, I find that one more opportunity can be given to the revision petitioner to defend the proceedings on conditions. 4. In the result, this revision petition is allowed. The order impugned would stand set aside and the matter would stand remanded back to the lower court for fresh disposal on merit after granting an opportunity to the revision petitioner to defend the proceedings on condition that the revision petitioner shall deposit the entire arrears as on this date as per the order impugned within one month and also on condition that the revision petitioner shall file his counter statement within one month, failing which the revision petition would stand dismissed. In the event the arrears is deposited and the counter statement is filed as per the above condition, the trial court shall dispose the petition within three months. P.S.GOPINATHAN, JUDGE skj