IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 RPFC.No. 258 of 2007() -------------------------------- MC.216/2006 OF FAMILY COURT, MALAPPURM .................... PETITIONER/RESPONDENT IN MC 216/2006 --------------------------------------------------------------- VANDITHODIYIL HAMZAKOYA, S/O ABDULLA, MANNITHODI VEEDU, FAROKE P.O., KOZHIKODE DIST. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENTS/PETITIONERS IN MC 216/2006 ------------------------------------------------------------------ 1. K.T.MYMOONA, 35 YEARS, D/O BEERAN, KUNDUTHODI, MUTHAN KANHIRATHINGAL HOUSE, PALLIKKAL AMSOM DESOM, TIRURANGADI TALUK. 2. ABDUL ALI, S/O HAMZAKOYA, -DO- -DO- 3. ASHIQUE,(MINOR), REPRESENTED BY MOTHER MYMOONA, -DO- -DO- 4. ABIDA,(MINOR), REPRESENTED BY MOTHER MYMOONA, -DO- -DO- ADV. SRI.E.NARAYANAN FOR R1 TO R4 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 19/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ R. BASANT, J. ------------------------------------------------- R.P.(FC) No.258 of 2007 ------------------------------------------------- Dated this the 19th day of November, 2008 ORDER The petitioner assails an order under Sec.125 Cr.P.C. passed against him obliging him to pay maintenance at the rate of Rs.1,500/- per mensem to the 1st claimant – his wife and amounts of Rs.900/-, Rs.800/- and Rs.800/- respectively to claimants 2, 3 and 4 – admittedly his children. 2. The learned counsel for the petitioner submits that overlooking the fact that a counter statement had been filed on 4/10/06, the learned Judge of the Family Court assuming that no counter had been filed had proceeded to pass the impugned order. The learned counsel for the petitioner further submits that the course adopted by the court below of having struck off the defences raised by the petitioner on the ground that interim maintenance has not been paid is not justified at RP(FC) No.258 of 2007 -: 2 :- all. 3. I have considered all the relevant inputs. I have heard the learned counsel for the petitioner and the respondents/ claimants. I am satisfied that the petitioner can be granted a further opportunity to contest the proceedings. 4. It is submitted that so far as the 2nd claimant is concerned, he has attained the age of majority on 23/5/06 and that the petitioner is thereafter not liable to pay any amount as maintenance to the said child/2nd claimant. 5. I am satisfied that this RP(FC) can be allowed and the petitioner can be granted a further opportunity to contest the proceedings on appropriate terms. 6. In the result: (a) This RP(FC) is allowed. (b) The impugned order shall stand set aside and the learned Judge shall dispose of the claim under Sec.125 Cr.P.C. afresh on the following terms and conditions: (i) The petitioner shall deposit the entire amount due by way of maintenance under the impugned order to claimants 2, 3 RP(FC) No.258 of 2007 -: 3 :- and 4 on or before 1/12/08. (ii) The payment shall be made of such amounts from the date of the petition (6/4/04) till 6/11/08. (iii) Call the petition again before the Family Court on 2/12/08. If the entire amount payable as maintenance till 6/11/08 is paid (including amounts, if any, already deposited), the learned Judge of the Family Court shall proceed to dispose of the claim afresh in accordance with law and expeditiously – at any rate, within a period of three months from 2/12/08. (iv) If the payment is not made as directed on or before 1/12/08, the learned Judge shall record that fact on 2/12/08 and thereupon the impugned order shall stand revived. (v) To avoid any further controversy, it is directed that maintenance to the 2nd claimant need be paid only till 23/5/06 the date on which he allegedly attains majority. The question as to the date till which he is entitled for maintenance shall, of course, be considered by the learned Judge afresh while disposing of the claim under Sec.125 Cr.P.C. RP(FC) No.258 of 2007 -: 4 :- (vi) All amounts deposited and to be deposited shall forthwith be released to the claimants. 7. Hand over a copy of this order to the learned counsel for the respondents for production before the learned Judge of the Family Court. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge RP(FC) No.258 of 2007 -: 5 :-