IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 RPFC.No. 191 of 2005() ---------------------- AGAINST THE ORDER DATED 29/07/2005 IN CRMP. 50 /2005 IN MC.23/2005 of FAMILY COURT, THODUPUZHA .................... REVISION PETITIONER/RESPONDENT: --------------------------------------------------------- VARKEY, S/O.SOURIAR, AMBATTU HOUSE, ANAKKUZHY BHAGAM, PULICKAKATHOTTY KARA, VANNAPPURAM VILLAGE, THODUPUZHA TALUK. BY ADV. MR.GEORGEKUTTY MATHEW RESPONDENT(S): PETITIONER: -------------------------------------------------- 1. MARIAM, W/O.VARKEY, AMBATTU HOUSE, ANAKUZHI BAHGOM, PULICKATHOTTY KARA, VANNAPPURAM VILLAGE, THODUPUZHA TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKAULAM. R1 BY ADV. MR.UNNIKRISHNAN.V.ALAPATT THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss P.S.GOPINATHAN, J. = = = = = = = = = = = = = R.P.(FC).No.191 of 2005. = = = = = = = = = = = = = Dated this the 2nd day of December, 2009. O R D E R The revision petitioner and the first respondent are husband and wife. The first respondent wife originally filed a petition as MC.No.145/2004 before the Judicial Magistrate of the First Class, Thodupuzha against the revision petitioner under Section 125 of the Code of Criminal Procedure. Consequent to the establishment of the Family Court, Thodupuzha, the case was made over to that court and renumbered as MC.No.31/2005. The revision petitioner didn't care to file any objection. Declaring the revision petitioner exparte, the petition was allowed by Order dated 26.5.2005 whereby the revision petitioner was directed to pay monthly maintenance at the rate of Rs.1,000/- to the first respondent. The revision petitioner filed Crl.MP.No.50/2005 seeking an order to set aside the exparte order and for disposing the petition on merit. By Order dated 29.7.2005, that petition was allowed on R.P.(FC).No.191 of 2005. -: 2 :- condition that the revision petitioner shall pay Rs.1,000/- as cost to the first respondent on or before 19.8.2005. But he didn't pay the amount. After declining his request for grant of further time, by Order dated 19.8.2005 it was recorded that the Crl.MP was dismissed in continuation of the order dated 29.7.2005. Assailing the legality, correctness and propriety of the above order, this Revision Petition was filed. 2. According to the learned counsel for the revision petitioner, the revision petitioner is now aged 77 years and is being maintained by his children and that he had obtained an order of maintenance under Sec.125 of the Code of Criminal Procedure against his children by order dated 26.5.2005 in M.C.No.31/2005. The revision petitioner was devoid of means or assets to pay the cost ordered by the trial court and it is in that circumstance there occured default and that the condition imposed by the court below was unjust and there is no willful laches or negligence on the side of the revision petitioner and that the failure to R.P.(FC).No.191 of 2005. -: 3 :- comply with the condition is because of poverty. It was also argued that the sons of the revision petitioner were persuading the first respondent, who is well maintained by the children to file a petition against the revision petitioner. Whether the petition was filed at the instance of the children or not is a matter to be probed into. The revision petitioner can agitate the same before the trial court. However, in the light of the order in M.C.No.31/2005, copy of which was produced as Annexure-C, the contention that the revision petitioner is at the mercy of the children appears to be true. Taking into account that the revision petitioner is at the mercy of the children and he is devoid of means, I find that the condition imposed by the trial court is very onerous. It is true that the first respondent also would be put to hardship because of the laches on the side of the revision petitioner to defend the petition before the trial court and by applying to set aside the order which she had obtained. It cannot be ignored that the revision petitioner had got a case that the first respondent is being maintained R.P.(FC).No.191 of 2005. -: 4 :- by her children. The order in MC.No.31/2005 would show that the first respondent has got four grown up sons. After sparing them she had opted to sue against the revision petitioner who is a septuagenarian and who had sued against the children for maintenance. Rat is smelt. In the above facts and circumstances, I find that it would be appropriate to grant an opportunity to the revision petitioner to agitate his contention before the trial court. In the result, this revision petition is allowed. The condition imposed by the trial court while setting aside the exparte order is set aside. The petition Crl.MP.No.50/2005 would stand allowed. The parties are directed to appear before the trial court by 25.1.2010. The trial court shall dispose of the matter at the earliest, not later than three months after the receipt of the copy of this order. P.S.GOPINATHAN, JUDGE. Kvs/-