IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 RPFC.No. 65 of 2009() ---------------------------------- MC.398/2007 of THE FAMILY COURT MALAPPURAM .................... REISION PETITIONER (S): RESPONDENT -------------------------------- N.MOIDEEN, 32 YEARS, S/O.KUNHIMON, PATHUMURI, PO.VELLAMOODE, PONNANI, MALAPPURAM. BY ADVS. MR.C.V.MANUVILSAN MR.P.K.KHALEEMUDHEEN SMT.K.VIDYA RESPONDENT(S): PETITIONERS ------------------------- 1. AYUKKARIYAKATH FATHIMA D/O.SIDHIQUE, GOVERNMENT HOSPITAL ROAD PO.PONNANI. 2. MANSOOFA, AGED 8 YEARS 3. MANSOOR, AGED 5 YEARS, (MINOR PETITIONER IS REPRESENTED BY GUARDIAN MOTHER 1ST RESPONDENT). ADV. MR.ESM.KABEER FOR R1 TO 3 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- R.P(F.C)No. 65 OF 2009 & CRL.M.A.No. 1809 OF 2009 --------------------------------- Dated this the 18th day of February, 2009 O R D E R This R.P(F.C) is preferred against the order of the Family Court, Malappuram in C.M.P Nos. 381/2008 and 382/2008 in M.C. 398/2007. These two applications are filed to condone the delay and to set aside the exparte order of maintenance passed in favour of the wife and children. As per the order, the Family Court directed the husband to pay a sum of Rs. 1,200/- to the wife and Rs. 700/- to the 1st child and Rs. 500/- to the 2nd child from the date of petition. The grievance of the petitioner is that he was not aware of the posting of the case to the Tirur Camp Sitting and he had not been given a reasonable opportunity of being heard before a final order was passed. The Family Court observed that the petitioner did not enter appearance for evidence and defaulted payment of the interim maintenance. Whatever it may be, it is an order passed without hearing him and I am informed that he has deposited Rs. 24,000/-. So suffice R.P.(F.C) No. 65/2009 -2- to say it is sufficient amount for the laches which he has contributed if any. Fairness requires that the matters are to be disposed of after hearing all concerned unless there is grave negligence and grave misconduct. The mere absence of party on a solitary day cannot be said to be grossly negligent. So I am inclined to grant an opportunity to the petitioner. Therefore the petition to condone the delay is allowed, exparte order is set aside and matter is remitted back to the Family court for disposal after giving both parties sufficient opportunity to adduce evidence in support of their contention. The amount which the petitioner has already deposited be withdrawn by the wife and children and if there is any adjustment to be done by virtue of reduction of the maintenance, it can be done at the stage of passing the final order in the case. M.N. KRISHNAN,JUDGE vkm