IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 RPFC.No. 494 of 2007() (COMMON ORDER IN C.M.P.NO.925/2006 & 926/2006 IN M.C.NO.153/2004 DATED 21.11.2006 OF FAMILY COURT, KOZHIKODE) REVN. PETITIONER/PETITIONER/RESPONDENT: ISMAIL, S/O. MAMMAD HAJI, MANALINPURATH HOUSE, PALACHUVADU, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SMT.R.BINDU SASTHMANGALAM RESPONDENTS: RESPONDENTS/PETITIONERS: 1. FOUSIYA, D/O. ABDULLA KUTTY, KANIKKAL THAZHE VEEDU, PALLIKKARA P.O., KOYILANDY. 2. NISA MUHAMMED, (MINOR), S/O. FOUSIYA, KANIKKAL THAZHE VEEDU, PALLIKKARA P.O., KOYILANDY. 3. AFIFA (MINOR), D/O. FOUSIYA, KANIKKAL THAZHE VEEDU, PALLIKKARA P.O., KOYILANDY. (MINOR RESPONDENTS 2 AND 3 REP. BY GUARDIAN, 1ST RESPONDENT). ADV. MR.K.M.FIROZ THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN,J. ====================== R.P(FC).No. 494 OF 2007 ====================== Dated this the 9th day of March 2010. O R D E R This revision is preferred against the order of the Family Court, Kozhikode in C.M.P.No. 925/2006 and C.M.P.No. 926/2006. Those applications are filed to set aside the ex-parte order and condone the delay of 657 days in filing the petition to set aside the ex-parte order. According to the husband he was working a hotel in Karnataka and the summons was received by the mother. There was no intimation and that resulted in an ex-parte order. It is to be remembered then that when substantial justice is pitted most technicality, substantial justice should prevail and principles of justice demand a fair hearing before a matter is disposed of. Therefore applying that larger theory coupled with the fact that there has been no contumacious act or gross negligence I am inclined to grant an R.P(FC).No. 494 OF 2007 2 opportunity. It is seen from the back drop of the case that the husband is only claiming to be a waiter in a hotel. If, it is true and genuine certainly the amount awarded may be excessive. The purpose of Section 125 Cr.P.C. is not to award an unreasonable amount and put him in jail which will result finally in working out injustice to the party. At the same time it has to be remembered that destitution has to be prevented and balance has to be struck between necessity and income and reasonable amount has to be awarded. Therefore I feel an opportunity can be given. I make it clear that I am not expressing anything on the merits of the case regarding the amount to be fixed and I leave it wide open. But the person who had caused such a delay and walked away comfortably has to pay interim maintenance at the rate of Rs.1,000/- to the wife and Rs.750/- to the children till a final decision is taken in the matter. It is also made it clear that if there is a default of two consecutive instalments, the Family Court has the opportunity to strike out the defence and proceed in R.P(FC).No. 494 OF 2007 3 accordance with law. This amount is to be paid from the date of filing of this revision before this Court. Let there be an expeditious disposal. If the amount of Rs.40,000/- deposited is not withdrawn the wife and children are at liberty to withdraw the same. M.N.KRISHNAN,JUDGE. mns