IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 RPFC.No. 125 of 2009() ---------------------- M.C.NO.130/2008 AND CMP.12 AND 28 OF 2009 IN MC NO.130/2008 OF FAMILY COURT, MALAPPURAM. .................... REVISION PETITIONER (S): RESPONDENT ------------------------------ GOPALAN, S/O. KUNCHI, PALLUYAYALIL VEEDU, MOORKKANAD AMSOM DESOM, KOLATHOOR.P.O, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON RESPONDENT(S): PETITIONERS -------------------------- 1. ANITHA, D/O. KORU, MADAYITHODI HOUSE, PULAMANTHOLE AMSOM DESOM, THIRUNARAYANAPURAM, P.O. PULAMANTHOLE, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 2. GOKUL, AGED 12 YEARS (MINOR) 3. GOPIKA, AGED 9 YEARS (MINOR) RESPONDENTS 2 & 3 ARE REPRESENTED BY GUARDIAN, MOTHER - IST RESPONDENT ADV. SRI.MANSOOR.B.H. FOR RESPONDENTS THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 28/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.P.(FC) No.125 of 2009 -------------------------------------- Dated this the 28th day of May, 2009. ORDER Respondents though served remain absent. 2. Challenge in this revision is to the refusal to set aside an exparte order in favour of the respondents under Section 127 of the Code of Criminal Procedure(for short, “the Code”). It is not disputed that respondent No.1 is the wife and respondent Nos.2 and 3 are minor children of the petitioner. Application preferred by the respondents for maintenance under Section 125 of the Code was initially settled in the adalath and petitioner was directed to pay maintenance allowance to them at the rate of Rs.350/- per month to respondent No.1 and Rs.300/- each per month to respondent Nos.2 and 3. Later on the application of respondents monthly allowance was enhanced to Rs.500/- per month to respondent No.1 and Rs.400/- each per month to respondent Nos.2 and 3 with effect from 28.7.2003. After five years, respondents preferred the present application for enhancement of maintenance allowance. On that application, petitioner concededly remained absent. Court below enhanced maintenance allowance payable to the respondents to Rs.800/- per month to respondent No.1 and Rs.700/- each per month to respondent Nos.2 and 3. Ninety days after the prescribed time to apply to set aside the exparte order, petitioner filed C.M.P.Nos. 12 of 2009 and 28 of 2009 to set aside the exparte order and to RP(FC) No.125/2009 2 condone the delay in filing the petition to set aside the exparte order. Learned Judge was not impressed by the reasons stated in the affidavit for the delay, found that reasons stated are false and consequently dismissed the petition. Hence this revision. Learned counsel contends that delay has been properly explained and that the petitioner ought to have been given an opportunity to contest the petition. 3. It is admitted that petitioner was served with notice in a petition to enforce the order, to appear in the Family Court on 20.5.2008 at 2.30 p.m. Petitioner was served with the notice on the application for enhancement of maintenance allowance also to appear in the same court on 20.5.2008. His version is that on a petition filed for enforcement of the order he was summoned to appear in the court on the same day at 2.30 p.m. and he thought that petition for enhancement of maintenance allowance will also be called only at that time, he had been in the court for that time but the petition for enhancement of maintenance allowance was not taken up. Court below observed that this contention cannot be sustained since in the notice issued to the petitioner on the application for enhancement it was specifically stated that he shall appear in court on 20.5.2008 at 11 a.m. and hence, the petitioner could not have been misled by the time fixed for appearance. I find no reason to discard that view of the court below. 4. Assuming that petitioner was under a bona fide impression that petition for enhancement would be taken up at 2.30 p.m. on 20.5.2008 one is persuaded to think why inspite of the petition for enhancement not being taken RP(FC) No.125/2009 3 up at 2.30 p.m., petitioner did not make any enquiry about that. It is interesting to note that he learnt about the exparte order on the application for enhancement of maintenance only after the expiry of ninety days when he received a notice on another petition for enforcement. At any rate it is certain that until such period petitioner had made no enquiry as to the fate of the petition filed against him for enhancement of maintenance allowance in which notice for appearance had already been served on him. It is pertinent to note that enhancement allowed by the family court is only at the rate of Rs.300/- each to respondent Nos.1 to 3, per month. At that time respondent No.1 was aged 37 years and respondent Nos.2 and 3 were aged 12 and 9 years respectively. I am also to look into the possible contention petitioner could take up assuming that he is given an opportunity to contest the petition for enhancement. The cost of living has increased by five years. Certainly the income of the petitioner also would have increased by this time. In these circumstances I am not inclined to interfere with the discretion exercised by the court below in not condoning the delay. This petition therefore fails. It is dismissed. Crl.M.A.No.3416 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks