IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 WP(C).No. 27152 of 2009(R) -------------------------------------- AGAINST THE ORDER DATED 24/08/2009 IN IA 1114/2009 IN OP.41/2009 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): ---------------------- 1. MOHAMMED @ INNIPPA S/O.CHEKKU, KADANNAMANNA AMSOM, VELLILA DESOM PERINTALMANNA TALUK. 2. P.K.MAMMU, S/O.CHEKKU KADANNAMANNA AMSOM, VELLILA DESOM PERINTALMANNA TALUK. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S): ------------------------- P.K.CHEKKU, S/O.MAMMU PALEMBADIYAN KONDAPPURATH HOUSE KADENNAMANNA AMSOM, VELLILA DESOM. BY ADV. SRI.BABU S. NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.27152 OF 2009 PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF THE COUNTER FILED BY THE PETITIONERS IN OP.NO.41 OF 2009. EXT.P2. TRUE COPY OF THE EXPARTE ORDER OF FAMILY COURT MALAPPURAM IN OP NO.41/2009 DATED 15.5.2009. EXT.P3, TRUE COPY OF THE ORDER DATED 24.8.2009 IN IA NO.1114/2009 IN OP NO.41/2009 OF FAMILY COURT, MALAPPURAM. EXT.P4. TRUE COPY OF THE LAB REPORT SHOWING BLOOD SUGAR DATED 1.4.2008 AND 16.1.2010. EXT.P5.TRUE HAND WRITTEN COPY OF THE SALE DEED NO.1733/94 OF MAKKARAPARAMBA SUB REGISTRAR OFFICE. EXT.P6.TRUE COPY OF THE ASSIGNMENT DEEDS DATED 16.7.2008 EXECUTED BY THE RESPONDENT. EXT.P7.TRUE COPY OF THE ASSIGNMENT DEEDS DATED 16.7.2008 EXECUTED BY THE RESPONDENT. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ W.P.(C) No.27152 of 2009-R ---------------------------------------------- Dated, this the 30th day of March, 2010 J U D G M E N T K.M.Joseph, J. Petitioners challenge Exts.P2 and P3. Briefly put, the case of the petitioners is as follows:--O.P.No.41/2009 is instituted by the respondent who is the father of the petitioners claiming past maintenance. Petitioners filed counter affidavit. It is stated that the respondent divorced the mother of the petitioners 20 years back and that the petitioners and their sister were brought up by the mother. The mother of the petitioners filed MC No.42/2008 claiming her rights under Section 3 of Muslim Women (Protection of Rights on Divorce) Act and the same is pending. It is stated that as a counter blast the present OP is filed. The respondent is having a second wife and family and income from landed properties. The OP was posted for evidence on 15.5.2009. The Ist petitioner was laid up due to chest pain. The 2nd petitioner was looking after the Ist petitioner. It is stated that WPC 27152/2009 -2- the Family Court refused to entertain the submissions of the counsel in the absence of the parties. Petitioners filed IA 1114/2009 to set aside the exparte order. It is allowed on condition that the petitioners must deposit 40% of the maintenance due under the exparte order. The amount comes to Rs.86,400/- which the petitioners were unable to raise. Ext.P2 is the exparte order of the Family Court. Ext.P3 is the order of the Family Court on the application to set aside the exparte order. 2. We heard the learned counsel for the petitioners. We feel that the condition imposed to set aside the exparte order is slightly onerous. There is a case for the petitioners that the respondent had deserted their mother and children about 20 years back and he has got a second wife. It is stated that he is having income. In the circumstances of the case, we modify Ext.P3 order and allow the application to set aside Ext.P2 exparte order on condition that the petitioners will deposit a sum of Rs.35,000/- (Thirty five thousand) within one month from today before the Family Court, Malappuram. Upon deposit of WPC 27152/2009 -3- the amount, the Family Court, Malappuram will take up O.P.No.41/2009 and decide the same on merits within a period of four months from the date on which the petitioners comply with the conditions as aforesaid. Needless to say, if the petitioners do not deposit the amount, the writ petition will stand dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS