IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 RPFC.No. 309 of 2010() ---------------------- MC.No. 135/2006 OF THE FAMILY COURT, PALAKKAD .................... REVISION PETITIONER/RESPONDENT (NEXT FRIEND). ----------------------------------------------------------------- RUKHIYA, W/O. ABU THAHIR, AGED 36 YEARS, MOTHIRAPEEDIKA VEEDU, KOTTAPURAM, KARIMPUZHA VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY SRI.N.N.AZAD RESPONDENT(S): PETITIONERS. ----------------------- 1. NOORJAHAN, W/O. ABU THAHIR, AGED 36 YEARS, CHAKIRIKULAMBIL, PERUVEMBU, PALAKKAD TALUK & DISTRICT. 2. SHAJIRA, D/O. ABU THAHIR, AGED 15 YEARS, CHAKIRIKULAMBIL, PERUVEMBU, PALAKKAD TALUK & DISTRICT. 3. SHAHIRA, D/O. ABU THAIR, AGD 13 YEARS, CHAKIRIKULAMBIL, PERUVEMBU, PALAKKAD TALUK & DISTRICT. 4. SHANFAR, S/O. ABU THAHIR, AGED 10 YEARS, CHAKIRIKULAMBIL, PERUVEMBU, PALAKKAD TALUK & DISTRICT. (RESPONDENTS 2 TO 4 ARE MINORS AND ARE REPRESENTED BY GUARDIAN-MOTHER 1ST RESPONDENT). ADV. SRI.SAJAN VARGHEESE K. FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 22/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. -------------------------------------------------- R.P(FC) No.309 of 2010 -------------------------------------------------- Dated this the 22nd day of June, 2011 O R D E R The order impugned in this RPFC is the one issued by the Family Court, Palakkad under section 125 Cr.P.C, by which the learned Judge of the Family court in his order dated 27.5.2009 in M.C. No.135 of 2006, allowed the claim petition filed by the claimants and directed the counter petitioner to pay maintenance to the claimants at the rate of Rs.750/- per month for the first claimant and at the rate of Rs.500/- per month for each of the other claimants. It is clarified that maintenance shall be paid from the date of filing the petition, i.e., 5.7.2004. It is also directed that every amount payable by the counter petitioner under that order shall be paid to the Ist petitioner. 2. Though there was delay in filing the revision petition, by order dated 2.9.2010 in Crl.M.A.No.9988/09, after hearing both the parties, the delay was condoned and the revision R.P.(FC).No.309 of 2010 :-2-: petition was numbered. 3. Along with the Revision, Crl.M.A.No.8326/10 was also filed seeking permission of this court to permit the petitioner in the said petition to proceed with the Revision Petition, being the next friend of the counter petitioner in the M.C, as he is mentally insane and unsound person. As there was serious objection against the above prayer, this Court, by order dated 16.9.2010 in Crl.M.A.No.8326/10, directed the revision petitioner to produce Mr. Abu Thahir, the counter petitioner in the M.C. Accordingly, the said person was produced in this court on 28.9.2010 and after interaction with him, this court was of the opinion that, in order to consider the above petition, an expert report has to be obtained and accordingly, by order dated 28.9.2010 in Crl.M.A.No.8326/10, the Superintendent of Medical College Hospital, Thrissur was directed to constitute a Board of experienced doctors and experts to assess the mental capacity of the said Abu Thahir and to make a report to this court. 4. In pursuance of the above direction, interim report was filed as per the letter No.G2- 7377/10, dated 24.11.2010 of the R.P.(FC).No.309 of 2010 :-3-: Superintendent, Medical College Hospital, Thrissur by which it is reported that, to make a conclusive opinion, the patient has to be admitted in the ward for a few days and has to evaluate him in detail. In the said report it is also stated that if he is continuing this behavioral pattern in the court, he will not be co-operative for a trial. On the basis of the above report, this court passed another order on 5.1.2010, directing the Superintendent of Medical College Hospital Hospital, Thrissur to file a final report and after examining the patient as suggested in the report, which I mentioned earlier and said, Abu Thahir was directed to contact the Superintendent of Medical College Hospital, Thrissur. Thus, thereafter by letter dated 16.3.2011, i.e.Lr.No.G2-7377/10/MCH of the Superintendent of Medical College Hospital, Thrissur, forwarded the report of the Medical Board consists of Dr. K.Mohanan, Superintendent and Dr.Jyothi K.S., Assistant Professor of Psychiatry. In the said report, it is stated: “ Sri Abu Thahir has been evaluated, in detail after admission, He is having a diagnosis of Bipolar affective disorder, with incomplete remission. Because of long standing illness significant social, R.P.(FC).No.309 of 2010 :-4-: occupational, and cognitive dysfunction has been reported and observed. To evaluate his dysfunction , a neuro psychological assessment has been tried, for which his cooperation was inadequate. In our opinion, he needs continuous treatment and there is scope for improvement”. Thus it can be seen that the said Abu Thahir needs continuous treatment and there is scope for improvement. In the light of the above report, I am satisfied that it is just and proper to allow Crl.M.A.No.8326/2010 and accordingly the same is allowed. 5. For the proper disposal of this Revision Petition, it appears that some more facts which leads to the filing of the RPFC, is necessary. The marriage between the first respondent herein and one Mr. Abu Thahir who is the counter petitioner in the M.C are not disputed. There is also no dispute that the other three claimants in the M.C., who are respondents 2 to 4 herein, are born in the said marriage. The respondents herein originally filed M.C.No.9/2004 under section 125 Cr.P.C before the Chief Judicial Magistrate court, Palakkad claiming maintenance but the same was dismissed as not pressed as per order dated 19.3.2004 of the learned Chief Judicial R.P.(FC).No.309 of 2010 :-5-: Magistrate. Subsequently, M.C.No.86/2004 was filed by the very same claimants before the Judicial First Class Magistrate, Chittoor on 5.7.2004. 6. During the pendency of the matter in that court , Crl.M.P.No.2639/2005 was filed under section 329 Cr.P.C and by order dated 1.10.2005 of the learned Magistrate, the trial was postponed and as per the discussions and findings of the learned Magistrate in that order, the case was posted to 2.12.2005 for trial. In the meanwhile the family court at Palakkad was established and thus the case was transferred to the Family Court wherein the case is renumbered as M.C.No.135/2006. During the pendency of the case before the Family court, the revision petitioner herein approached the said court by filing M.P.No.2329/2007 on 11.12.2007 seeking permission to implead her in the main proceedings and to contest the matter on behalf of the counter petitioner therein which was dismissed on 7.5.2009. It is thereafter, the Family Court disposed of MC 135/2006 as per the order impugned in this Crl.R.P. Going by the above order it appears that PW1, the first claimant was not cross examined and, in effect, the order R.P.(FC).No.309 of 2010 :-6-: is an ex parte order because, no evidence was adduced and the the counter petitioner was not heard. Thus it is the above order now challenged before this court at the instance of a third party. 5. As I indicated earlier, as per the inquiry conducted by this Court, now it is crystal clear that the counter petitioner is not in a position to prosecute this Crl.R.P himself. Therefore In the light of the reports filed by the Medical Board, it is only just and proper to allow the prayer in Crl.M.A.No.8326/10 and permit the petitioner therein to prosecute the Crl.R.P for and on behalf of the counter petitioner. 8. In the light of the above materials, and the proceedings and the discussion, it is crystal clear that the order impugned is an ex parte order and the counter petitioner is justified in not appearing before the court below and defending the matter because of his mental aliment and the proceedings of the Judicial First class court, Chittoor in CMP No.2632/2005 justifies the above stand of the counter petitioner. The enquiries conducted by this Court in Crl.M.A.No.8326/10 and the report of the Medical Board confirmed that the counter petitioner needs R.P.(FC).No.309 of 2010 :-7-: treatment. Therefore, the Family court ought not have proceeded to dispose of the main matter without a proper adjudication of the issue that raised by the revision petitioner before the court below, especially, on the basis of the mental ailment of the counter petitioner. 9. The learned counsel for the respondents vehemently submitted that the order dated 7.8.2009 in CMP 2329 of 2007 of the Family court, Palakkad became final since the said order was not challenged. As rightly pointed out by the counsel for the revision petitioner that, the revision petitioner has already taken the grounds in the present Revision Petition challenging the order impugned in this R.P against the order dated 7.5.2009 of the Family court and the said order will merge with the main order of the family court which is under challenge in this R.P. That being the position, according to me, though the challenge is against the correctness, propriety and legality of the order passed finally, but when the grounds urged are on the basis of the mental ailments of the counter petitioner, I am of the view that the challenge against the final order will survive even though there is no separate proceedings and challenge against R.P.(FC).No.309 of 2010 :-8-: the interlocutory order of the Family court in CMP No.2329 of 2007. Thus it can be seen that the present challenge is against the ex parte order, which according to me, to be raised before the Family Court, Palakkad under Section 126(2) Cr.P.C in the light of the facts and circumstances and the materials and the evidence referred to above. Therefore, according to me it is only just and proper to set aside the order impugned and to remand the matter back to the same court for fresh consideration. In the result, this Crl.R.P is disposed of setting aside the order dated 27.5.2009 in M.C. No.135/2006 of the Family court, Palakkad and the matter is remitted back to the same court for passing final order. It is made clear that the parties are free to adduce fresh evidence, if they are so advised, and the parties are free to rely upon the records obtained by this court as per the proceedings referred to above but subject to strict proof in the court below in accordance with the procedure and law. Depends upon the outcome of the proceedings to be resumed, it is for the Family court to decide whether it is expedient to resort to the procedure contemplated by chapter XXV of the Cr.P.C otherwise to proceed to dispose of M.C. No.135/2006 R.P.(FC).No.309 of 2010 :-9-: according to merit. The parties are directed to appear before the Family Court, Palakkad on 22.7.2011 on which date the said court is directed to restore the M.C on file and to proceed in accordance with the procedure contemplated as per Chapter XXV Cr.P.C and to dispose of the matter finally on merit. V.K.MOHANAN, Judge. kvm/- R.P.(FC).No.309 of 2010 :-10-: