IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 WP(C).No. 29782 of 2008(S) -------------------------- AGAINST THE ORDER DATED 19/09/2008 IN CMP 851/2008 IN MC.349/2007 of FAMILY COURT, MALAPPURAM .................... PETITIONER: ----------------- N.TAMBI, MANIVILASAM, KATTIPARA, THAMARASSERY. BY ADV. SRI.C.ANIL KUMAR SMT.SHAHNA KARTHIKEYAN RESPONDENT: ------------------ N.GEETHA, AMRUTHA WOMEN'S HOSTEL, MANJERI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- W.P.(C)NO.29782 OF 2008 -------------------------------- Dated this the 7th day of October, 2008 JUDGMENT Raman,J. Petitioner is aggrieved by Exts.P7 & P8 orders passed by the family Court, Malappuram. Petitioner was the respondent in M.C.No.349/2007 filed by the wife claiming maintenance. Ex parte order was passed against the petitioner directing to pay an amount of Rs.5,000/- per month from 9/5/2007. Challenging the said order the petitioner filed Crl.M.A.No.5338/2008 in unnumbered R.P.(FC). That was subsequently withdrawn, since the petitioner's remedy is to move the Family Court to set aside the ex parte order. Subsequently, he filed a petition to set aside the ex parte order along with a petition to condone the delay. Respondent entered appearance and filed a counter affidavit. To substantiate the contention raised in the petition for condonation of delay as also in the petition to set aside the ex parte order the petitioner did not -2- WP(C).No.29782/2008 mount the box or give any other evidence. Even in the absence of such evidence and materials produced, the Family Court took a lenient view setting aside the ex parte order after condoning the delay on condition to deposit 60% of the amount towards past maintenance. According to the petitioner, the condition imposed to deposit 60% is without jurisdiction and is excessive. Learned counsel also placed reliance on the provisions contained in Section 126 of the Cr.P.C. and contended that the condition imposed is beyond the scope of the section. 2. It is a case where the Family Court ought to have dismissed the petition for setting aside the ex parte order and the petition for condonation of delay, since the petitioner did not adduce any evidence to support the averments made in the petition. But exercising the discretion, the order was set aside enabling the petitioner to contest the matter; but directing to deposit 60% of the amount. We do not find that the condition imposed is in any way contrary to Section 126 of the Cr.P.C., as contended. -3- WP(C).No.29782/2008 3. It is contented by the learned counsel for the petitioner that the petitioner has no job at present, though he was abroad earlier. He was an acute diabetic person and because of his poor eye sight he returned from abroad and now sitting at home. 4. In the circumstances, we reduce the amount of 60% to 40% and also give one month's time to make the deposit. The order passed by the Family Court is accordingly modified. Writ Petition is disposed of as above. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.