IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 RPFC.No. 62 of 2011() -------------------------------- MC.44/2009 of FAMILY COURT, KOLLAM. .................... REVISION PETITIONER/COUNTER PETITIONER ------------------------------------------------------------------- ABDUL VAHAB, AGED 44 YEARS, S/O.HANEEFA KUNJU, PALILIL VEEDU, KOOTIKODA, KOLLAM, PRESENTLY RESIDING AT CHANTAKKADA, KOOTIKADA.P.O., ERAVIPURAM, KOLLAM. BY ADVS. SMT.SUSAN MATHEW SRI.R.MANOJ RESPONDENT(S): PETITIONERS ----------------------------------------------- 1. NADEERA, D/O.AHMMED KOYA, PATTAVAYALIL VEEDU, VADAKKEVILA.P.O., KAYYALAKKAL, ERAVIPURAM, KOLLAM.691 010. 2. MUHAMMED AKBAR, (MINOR), PATTAVAYALIL VEEDU, VADAKKEVILA.P.O., KAYYALAKKAL, ERAVIPURAM, KOLLAM. 691 010. 3. AJMAL, (MINOR), PATTAVAYALIL VEEDU, VADAKKEVILA.P.O., KAYYALAKKAL, ERAVIPURAM, KOLLAM. 691 010. ADV. SRI. K.SIJU THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 04/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J ------------------------------- R.P.(F.C).NO.62 OF 2011 ------------------------------------------------- Dated this the 4th day of March, 2011. ORDER The counter petitioner in M.C No.44/2009 of the Family Court, Kollam is the revision petitioner and the challenge is against the exparte order dated 30-11-09 issued therein. 2. I have heard the counsel appearing for the petitioner as well as the respondent. 3. As per the proviso of Sub Section 2 of Section 126, the person aggrieved by an exparte order can approach the same court by showing sufficient reason for his absence for setting aside the ex parte order. Since an alternate remedy is provided in the Code itself, I am of the view that it is only just and proper to relegate the petitioner to approach the Family Court, Kollam to seek an order to set aside the ex parte order. The learned counsel raised several contentions in support of the relief sought in the revision petitioner but I am not proposed to consider those contentions on merit since the revision petitioner being relegated to the very same Family Court. 4. But it is relevant note that there is no dispute regarding the marriage and the paternity of the children. The exparte order is dated 30-11-2009 and the said claim for maintenance was preferred R.P.(F.C).NO.62 OF 2011 2 on 5-3-2009. So far no amount is seen paid towards the maintenance. In the light of the above facts according to me it is only just and proper to impose a condition while disposing this revision and directing the petitioner to approach the Family Court for the relief under Section126(2) of Cr.P.C. Considering the mitigating circumstances pointed out by the counsel for the petitioner I am of the view that the petitioner can be directed to deposit 25% of the total arrears as a condition to consider the petition, that may be filed by the petitioner U/S.126(2) of Cr.P.C. 5. It is also relevant to note that this court entertained this revision petition after condoning the delay of 281 days that occurred in filing the present revision petition by ordered dated 28-02-2011 in Crl.M.A.No. 11681/2010. Therefore, naturally there will be delay in filing the petition before the Family court as directed above. Having regard to the facts and circumstances involved in this case, I am of the opinion that if the petitioner approach the family court by filing the petition to condone the delay and the petition to set aside the exparte order it is for the Family Court, Kollam to decide and dispose of such petitions on merit and the Family court is also free to impose appropriate terms while considering the delay petition. In the result, this revision petition is disposed of relegating the petitioner to approach the Family Court, Kollam, under Section 126(2) R.P.(F.C).NO.62 OF 2011 3 of Cr.P.C. for setting aside the exparte order dated 30.11.2010 in MC No.44/2009 by showing reasons to the satisfaction of the learned judge of the Family Court. It is made clear that the learned Family Court Judge need to entertain such petitions only on condition the petitioner depositing 25% of the total arrears as per the order impugned within one month from today. Subject to the above direction and observation this revision petition is disposed of. It is made clear that the Family Court free to decide and deal with the arrears, orders to be deposited by the petitioner. V.K.MOHANAN, JUDGE pm