IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 Crl.MC.No. 2166 of 2008() ------------------------- MC.466/2001 of Family Court, Manjeri .................... PETITIONER: RESPONDENT ---------------------- M.V.SREENIVASAN@ THAMPI, S/O.M.V.BALAKRISHNAN NAIR, MADATHIL VALAPPIL VEEDU, KUTTIPURAM PAZHOOR DESAM TIRUR TALUK, PO.PAZOOR,KUTTIPURAM,MALAPPURAM BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENT/RESPONDENTS & STATE: ------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR OF HIGH COURT OF KERALA, ERNAKULAM 2. T.P.SHEEJA, D/O.T.P.KUTTIKRISHNANA MANCHERI PARAMBIL VEEDU, PONNANI TALUK THRIKKANNAPURAM DESAM, POST TRIKKANNAPURAM, MALAPPURAM. 3. M.V.SHIJU, D/O.T.P.KUTTIKRISHNAN, MANCHERI PARAMBIL VEEDU, PONNANI TALUK TRIKKANNAPURAM DESAM, POST TRIKKANNAPURAM, MALAPPURAM BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.2166 of 2008 ---------------------------------------- Dated this the 9th day of June 2008 O R D E R Against the petitioner, an ex parte order under Section 125 Cr.P.C has been passed directing him to pay maintenance at the rate of Rs.500/- per mensum to the third respondent from the date of the petition that is 20/12/2001. The learned counsel for the petitioner submits that the claim is in respect of a child born on 18/09/1989 and the allegation is that there was illegitimate premarital sexual relationship between the second respondent and the petitioner herein. According to the petitioner, an ex parte order was passed without any valid reason. He was not properly served. He now faces the prospect of arrest and detention for not-complying with the order granting maintenance. The petitioner is willing to pay maintenance at the rate of Rs.2,000/- per month for the child from the date of birth of the child if it is found in a DNA test that he is the father of the child. The petitioner is willing to file such an undertaking before the Family Court, Manjeri. The petitioner now has a case that he has not been properly served before he was set ex parte. Crl.M.C.No.2166/08 2 2. In such a situation, the petitioner must ordinarily and normally approach the learned Judge of the Family Court with an application to set aside the ex parte order. The petitioner has not done the same. Why has he not done the same? According to the petitioner, he will not be able to do the same as he will be taken into custody and detained for non-compliance with the order before his application to set aside the ex parte order is considered on merits. The learned counsel for the petitioner makes a very reasonable offer. The petitioner undertakes to deposit the entire arrears due under the impugned order. He is willing to file an undertaking that without any dispute about the power of the court to issue such a direction, the petitioner shall pay maintenance to the claimant/child at the rate of Rs.2,000/- per mensum from the date of birth of the child if in a D.N.A. test to be conducted he were found to be the father of the child. He only prays that the amount deposited by him may not be released to the child till a decision is taken on the application to set aside the ex parte order. The learned counsel for the petitioner thus claims only for a limited opportunity to file an application to set aside the ex parte order on condition of deposit of the entire Crl.M.C.No.2166/08 3 amount payable so that warrant shall not be executed against him before the application to set aside the ex parte order is decided. 3. I reckon the offer is absolutely reasonable. I am satisfied that the request of the learned counsel for the petitioner can be accepted and appropriate directions issued. 4. This Crl.M.C is in these circumstances allowed in part. The following directions are issued: i) The petitioner shall, within a period of thirty days from this date, deposit the entire amount payable under the impugned order till the date of deposit before the Family Court. ii) The petitioner shall file an affidavit of undertaking agreeing to pay the amount of Rs.2,000/- per month from the date of birth of the child if the ex parte order were set aside and it is found in a D.N.A test that the petitioner is the father of the child. iii) The petitioner shall be permitted to forthwith file an application to set aside the ex parte order along with an application for condonation of delay and the learned Magistrate shall as expeditiously as possible dispose of such application in Crl.M.C.No.2166/08 4 accordance with law if the amount is deposited as directed in Clause (i) above. No action shall be taken against the petitioner until the application to set aside the ex parte order and the application for condonation of delay are disposed of. Till then, the amount deposited by the petitioner shall not be released to the claimant. 5. In the peculiar facts and circumstances of this case, I am satisfied that this Crl.M.C can be disposed of without ordering notice to the respondent. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) jsr Crl.M.C.No.2166/08 5 Crl.M.C.No.2166/08 6 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007