IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 RPFC.No. 251 of 2011() ---------------------- MC.4/2009 of FAMILY COURT, ALAPPUZHA .................... REVISION PETITIONER/RESPONDENT ---------------------------------------------------- RADHAKRISHNA PANICKER, AGED 57 YEARS, S/O DAMODARA PANICKER, IDAVANA NIKARTHIL, MARATHORVATTOM P.O, CHERTHALA BY ADVS. SMT.ANU SIVARAMAN SMT.VINEETHA B. RESPONDENT(S): ---------------------- USHAKUMARI AGED 46 YEARS, W/O RADHAKRISHNA PANICKER KURUMALLIL, MARUTHORVATTOM CHERTHALA. BY ADV. SRI.B.PRAMOD THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 06/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: JM S.S.SATHEESACHANDRAN, J -------------------------------------- R.P(F.C) No.251 OF 2011 ----------------------------------------- Dated this the 6th day of December 2011 ORDER Challenge in the revision is against the order passed in a proceeding under Section 125 of the Code of Criminal Procedure (for short, 'the Code'), by the Judge, Family Court, Alappuzha. The respondent/husband has filed this revision impeaching the legality, propriety and correctness of the order directing him to pay maintenance at the rate of `.1,000/- per month to the claimant, admittedly, his wife. 2. The only point that was urged before me by the learned counsel for the respondent/husband is that he was denied sufficient opportunity to substantiate the objections raised as to why the claimant wife is not entitled to have maintenance from him. When the case was posted on 26-04-2011, he could not appear in view of his physical ailments and, therefore, an application for adjournment with a medical certificate was moved before the court, submits the counsel. That application was not considered with reference to the certificate produced; but, solely based on the statements made by the wife that he has no ailments, the court closed the evidence of the case, is the R.P(F.C) No.251 OF 2011 2 submission of the counsel. An opportunity to lead evidence to substantiate the objections raised is sought for, by setting aside the impugned order and remitting the case for fresh disposal. Remission sought for is objected to by the learned counsel for the wife, the respondent, submitting that even prior to the posting on 26-04-2011, three postings were specifically provided to the revision petitioner/husband, to tender his evidence. The respondent was not ready to give evidence. On 26-04-2011 an application with medical certificate was produced seeking further adjournment. Having regard to the adjournments already granted and satisfied that the request made on that posting date was intended to protract the proceedings, the court has closed the evidence, is the submission of the counsel. There is no impropriety or infirmity in the order passed by the court below in closing the evidence and disposing the case, and that was done after hearing the counsel on both sides, is the submission of the counsel. 3. The learned counsel for the revision petitioner/husband has read out to me the orders passed by the court below on 26-04-2011, by which the evidence in the case was closed. The order passed thereof, as read out to me, would indicate that the court has not applied its mind to the medical certificate produced. Whatever be the R.P(F.C) No.251 OF 2011 3 cause for adjournments of the case on the previous posting dates, when an application was moved for adjournment producing a medical certificate, reference to such medical certificate was required in considering the merit of the adjournment with the cause shown thereunder. It is submitted that in the medical certificate produced, period of absence till 05-05-2011 was applied for and, thus, to seek adjournment of the case after that date. When no challenge was made specifically against the certificate issued by a competent medical practitioner, the court below should have given some presumptive value to such medical certificate in considering the request made for adjournment of the case requested for by the husband. Under the circumstance, the order passed by the court below without providing opportunity to the respondent to lead evidence in the case cannot be sustained. However, the proceedings have commenced as early in 2009 and till date no amount is paid to the wife as maintenance, whatever be the objections raised by the respondent to resist her claim also deserve to be taken note of in extending an opportunity to the husband to lead evidence by setting aside the impugned order and remitting the case for fresh disposal. So much so, remission of the case to lead evidence can be granted only on terms compensating the injury likely to be suffered by the respondent wife. R.P(F.C) No.251 OF 2011 4 4. Petitioner shall pay a sum of Rs.2,500/- as costs to the respondent wife to have further opportunity to lead evidence, to substantiate the objections raised in the case. Costs so ordered shall be deposited before the court below within a period of four weeks from today, and it shall be released to the wife. 5. Parties are directed to appear before the court below through their counsel on 10-01-2012. If cost is paid as directed within the time stipulated, the court below shall provide an opportunity to the husband to lead evidence in the case and, thereafter, dispose the case in accordance with law after hearing both parties, as expeditiously as possible, at any rate, within a period of three months from the date fixed for appearance as above. In the event of nonpayment of costs, the order impugned shall remain intact and nothing more need be done by the court below. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge