IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 RPFC.NO. 55 OF 2007() --------------------- MC.247/2006 OF FAMILY COURT, MALAPPURAM .................... REVISION PETITIONER (RESPONDENT): ----------------------------------------------------- ABOOBACKER SIDDIQUE, S/O. LATE KUNHUMOHAMMED, MAVUMKUNNATH HOUSE, VETTOM AMSOM, DESOM, TIRUR TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER,M.K.YOUSUF, S/O.KUNHI MOHAMMED,MAVUMKUNNATH HOUSE,VETTAM AMSOM DESOM, P.O. VETTAM, TIRUR TALUK. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S): (PETITIONERS): ------------------------------------------------ 1. NOORJAHAN, D/O.THAZHATHAYIL MOITHUNNI, MANGALAM AMSOM, DESOM, TIRUR TALUK. 2. MUHAMMED ANAS,AGED 15 YEARS (MINOR). 3. IBRAHIM KUTTY, AGED 11 YEARS (MINOR). 4. KADEEJA, AGED 6 YEARS (MINOR). (MINOR PETITIONERS 2 TO 4 ARE REPRESENTED BY GUARDIAN MOTHER THE FIRST PETITIONER). ADV. SRI.P.VIJAYA BHANU FOR R1TO4 SMT.P.MAYA FOR R1TO4 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.P(FC) NO.55 of 2007 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 16th day of June, 2009 O R D E R -------------- Heard both sides. Since on the facts admitted the revision could be disposed of, I am not calling for the records of the case. 2. Petitioner has suffered an order for payment of maintenance to his wife and three children as per the impugned order dated 28.10.2006. Maintenance ordered to respondent No.1 is Rs.2,500/- per month while Rs.2,000/- each per month was awarded to the children, respondent Nos.2 to 4. It is seen from the order under challenge that there was also an order for payment of interim maintenance which petitioner did not comply and hence his defence was struck off. Evidence of respondent No.1 was recorded and the impugned order was passed. 3. It is true that courts have the power to strike off the defence of a party concerned but such a drastic step is called for only when there is a wilful default or failure to comply with an oder or direction. In this case it is not shown that there is wilful default on the part of the petitioner in paying the interim maintenance. Hence I am inclined to think that striking off defence was not warranted. Consequently, the order under challenge is liable to be set aside. I do R.P(FC) No.55 of 2007 -: 2 :- so. 4. But the plight of the respondents cannot be forgotten. There is no dispute that respondent No.1 is the wife and respondent Nos.2 to 4 are children of the petitioner. Court below has ordered interim maintenance to them. Petitioner has to pay the interim maintenance ordered by the court below without fail. It is submitted by counsel for petitioner that petitioner has deposited 50% of the arrears as per the order of this Court. If any such amount is deposited, it is open to the respondents to withdraw the same. Petitioner shall deposit in the trial court for payment to the respondents the balance amount due till 1.7.2009 as per the interim order of maintenance within two months from this day. Petitioner shall also continue to pay the interim maintenance due from 1.7.2009 onwards. Resultantly, revision is allowed in part. Order under challenge is set aside and matter is remitted to the court below. Parties shall appear in the Family Court, Malappuram on 20.7.2009. Criminal Miscellaneous Petition No.1634 of 2007 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv