IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 MFA..(GUARDIAN & WARDS ACT) No. 43 of 2008() -------------------- I.A.NOS.86 AND 87 OF 2008 IN OP.314/2007 of FAMILY COURT, MALAPPURAM .................... APPELLANT: PETITIONER/RESPONDENT: --------------------------------- MENAMPURATH KIZHAKKETHIL SANTHOSH KUMAR, S/O. RAGHAVAN NAIR, THUVOOR AMSOM DESOM, PALLIPARAMB. BY ADV. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY RESPONDENT: RESPONDENT/PETITIONER: ----------------------------------- SMITHA A.NAIR, D/O.M.R.ARJUNANKUTTY, CHERUVELIL HOUSE, KAILAS NADU, P.O. MYLADUMPARA, VIA. UDUMBANCHOLA, UDUMBANCHOLA TALUK, IDUKKI. BY ADV. SRI.T.I.ABDUL SALAM FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Order on I.A.NO.846 of 2008 IN M.F.A.(Guardian & Wards Act)No.43/2008 Dismissed 21.5.2008 Sd/- J.B.Koshy, Judge. Sd/- P.N.Ravindran, Judge. // True copy // tks J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.(Guardian & Wards Act)No.43 OF 2008 ------------------------------------- Dated 21st May, 2008 JUDGMENT Koshy,J . It is the case of the appellant that he attended counselling, but, when he was absent for one day, he was set ex parte. In spite of medical certificate, his petition to set aside ex parte order was not allowed. According to the Family Court, the petition to set aside ex parte order was filed belatedly after a long delay of five months and no reasonable explanation was given. At the time of admission, we have ordered notice to respondent on appellant depositing Rs.5,000/= towards costs as respondent has to engage an advocate in this court for no fault of her. The child is produced today. We have allowed the mother to talk with the child for some time. We are not going into the merits of the matter in this appeal and on the facts and circumstances of the case, we allow the delay condonation petition and petition to set aside the ex parte order on condition that appellant pays Rs.5,000/= more as costs to the respondent on or before 10.6.2008 and on further condition that the appellant should be present with the child in the Family Court on 16.6.2008. He is allowed to send the cost of Rs.5,000/= by money order to the respondent or to deposit the amount in Family Court. MFA.43/2008 2 If the amount of cost as ordered is paid/deposited before 10.6.2008, the impugned orders will stand set aside and case will be restored to file. If the above conditions are not complied with, impugned orders will stand confirmed. Family Court is directed to hear the matter on merits after taking appropriate evidence. We are not considering any order regarding the interim custody of the child as those matters have to be decided by the Family Court. Parties should also note that they appear before the Family Court, Malappuram as the case is posted on 16.6.2008 in the Family Court. The appeal is allowed to the above extent. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks