IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 1433 of 2009(S) ------------------------- AGAINST THE ORDER DATED / / IN IA.619/2008 IN OP.423/2004 of FAMILY COURT,KOZHIKODE .................... PETITIONER(S): --------------- M.V.UNNIKRISHNAN, S/O.GOPALAN, AGED 41 YEARS, MEETHAL VALAPPIL HOUSE, EDAKKAD, EDAKKAD DESOM, KANNUR DISTRICT. BY ADV. SRI.RAJESH P.NAIR RESPONDENT(S): --------------- K.P.SHEEJA, AGED 36 YEARS, KAKKADATH PALAT HOUSE, NEAR OLD MODERN ITI, BEYPORE NORTH P.O., KOZHIKODE. ADV. SRI.V.V.SURENDRAN FOR R1 SRI.P.A.HARISH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ W.P(C) No.1433 of 2009 ------------------------------------- Dated this the 31st day of March, 2009 JUDGMENT BASANT, J. Petitioner/father had filed an application for custody of his minor child, a boy aged 11 years. The spouses are already divorced. The application for custody was dismissed initially and an appeal was preferred before this Court. By judgment dated 04.10.2007 in Mat.Appeal No.323 of 2007 that order was set aside and the Family Court was directed to dispose of the matter afresh. Parties were directed to appear before the Family Curt on 12.11.2007. 2. On 12.11.2007 when the matter was called before the Family court, the petitioner was not present. Respondent along with the child was present in obedience to the directions of the Division Bench issued earlier. The learned Judge of the Family Court, in these circumstances, proceeded to dismiss the petition for custody filed by the petitioner. 3. An application was filed for restoration. That application stands dismissed under Ext.P4 order. That order impugned in this Writ Petition. W.P(C) No.1433 of 2009 2 4. The learned counsel for the petitioner submits that absence of the petitioner on 12.11.2007 before the court below was not intentional or wilful but was due to reasons beyond his control. The learned Judge of the Family Court should have indulgently granted the petitioner at least one more opportunity to appear and advance his contentions. Subject to any appropriate terms and conditions, such an opportunity may be granted to the petitioner, contends the learned counsel for the petitioner. 5. The learned counsel for the respondent on the contrary asserts that there is absolutely no bona fides in the prayer of the petitioner. The petitioner has been adopting such an attitude all through. The same was the attitude of the petitioner when the matter came up for consideration before the Family Court also. The counsel points out that amounts which have already been ordered for the maintenance of the wife and child remains unpaid even now. A substantial amount is now payable, it is contended. There is no agreement between the parties as to the precise amount that is in arrears. 6. We have considered all the relevant circumstances. We note t hat the petitioner's application for custody was W.P(C) No.1433 of 2009 3 dismissed for the sole reason that he was not present on the first day when the case was posted before the Family Court after remand by this Court. 7. We are, in these circumstances, persuaded to take a lenient view. Admittedly amounts are in arrears and we are satisfied that the petitioner can be put to appropriate terms as condition for restoration of O.P.No.423 of 2004. 8. In the result: a) This petition is allowed subject to conditions; b) The impugned order dismissing O.P.No.423 of 2004 passed on 12.11.2007 shall stand set aside and the learned Judge of the Family Court shall dispose of the same afresh in accordance with law on condition that the petitioner deposits an amount of Rs.15,000/- (Rupees Fifteen thousand only) before the Family Court within a period of one month from this date (ie. on or before 30.04.09). If that amount is paid, it shall be released forthwith to the respondent herein and the same shall be credited to the amounts due under the order for maintenance; c) Parties shall appear before the Family Court on 04.05.09. If amount is deposited as directed, the Family Court shall dispose of O.P.No.423 of 2004 on merits as expeditiously W.P(C) No.1433 of 2009 4 thereafter, at any rate, within a period of 2 months from that date. d) If the amount is not paid, the learned Judge of the Family Court shall make a note of the same on 04.05.09 and thereupon the impugned order shall stand revived and shall continue to remain in force. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-