IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 OP (FC).No. 1355 of 2011(R) --------------------------- PETITIONER ------------------------------ RAJESH P.A., S/O. ASOKAN, PONTHIPARAMBIL HOUSE, MADATHIKKARA LANE, IRINJALAKKUDA, THRISSUR DISTRICT, NOW WORKING AT KUWAIT, REPRESENTED BY POWER OF ATTORNEY HOLDER SYAM SUNDAR, RESIDING AT -DO- -DO- BY ADV. SMT.K.GIRIJA RESPONDENT(S): --------------- BINDU, D/O. GOPI, MARANGADDUMOOZHIYIL HOUSE, THIRUMARAYOOR P.O., ARAKUNNAM VIA., ERNAKULAM DISTRICT-682 313. ADV. SRI.K.B.DAYAL THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- O.P.(F.C.) No.1355 of 2011 ----------------------------------------------- Dated 3rd June, 2011. J U D G M E N T Joseph, J. Petitioner seeks to set aside Ext.P6 order passed by the Family Court, Ernakulam. Briefly, petitioner's case is as follows : The respondent, who is the wife of the petitioner filed M.C.120/2009 before the Family Court, Ernakulam, claiming monthly maintenance of Rs.6,000/- per month, alleging that the petitioner is having an income of Rs.50,000/- per month. 2. The case was posted on 3.7.2009 for return of notice. On the adjourned date, notice was served on the brother of the petitioner and the court declared the petitioner as ex parte and the case was posted on 25.9.2009. The case was further posted to 28.10.2009 and then to 10.11.2009 and orders were passed on 13.11.2009, directing payment of Rs.3,000/-, as maintenance to the respondent. The petitioner filed Exts.P1 and P2 applications to set aside the ex parte decree and to condone the delay of 150 days. Those applications were rejected by Ext.P6. The respondent filed Exts.P3 and P4 counter affidavits. According to the petitioner, O.P.(FC) 1355/11 2 the petitioner is working abroad and he is not actually served with the notice. Ext.P7 is produced to show that the respondent is aware that the petitioner is working abroad. 3. We heard learned counsel for the petitioner and the learned counsel for the respondent. Learned counsel for the respondent would point out that an amount of Rs.75,000/- is in arrears. He would also point out that all that the Family Court has ordered is Rs.3,000/- per month towards maintenance. 4. According to the learned counsel for the petitioner, petitioner is working abroad and the order of the court is to pay maintenance at the rate of Rs.3,000/- per month. We feel that an opportunity can be given to the petitioner; however, it must be on heavy terms. In the circumstances of this case, we allow the Original Petition and set aside Ext.P6 and the ex parte decree will stand set aside on condition that the petitioner will deposit a total sum of Rs.60,000/- within a period of one month from today. This will be inclusive of the amount of Rs.20,000/- ordered to be deposited by interim order O.P.(FC) 1355/11 3 of this Court. Upon deposit of the amount, it will be open to the respondent to withdraw the entire amount and this will be subject to the final decision to be taken by the Family Court, after adjudicating the matter, with an opportunity to the parties. In case the amount is not deposited by the petitioner, we make it clear that this Original Petition will stand dismissed. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.