IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 RPFC.No. 98 of 2011() --------------------- MC.103/2009 of FAMILY COURT KOTTAYAM AT ETTUMANOOR. .................... REVISION PETITIONER/COUNTER PETITIONER ---------------------------------------------------------- CHERIYAN KURUVILLA, S/O. P.V.KURUVILLA, PUTHIYAPARAMBIL HOUSE, SOUTH PAMPADY,KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENTS: IST PETITIONER ----------------------------- MINI GEORGE,D/O.GEORGE KALARICKAL HOUSE, THENGUMPALLY ANIKKAD , KOTTAYAM. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 11/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- R.P (FC) No.98 of 2011 ---------------------------------------- Dated the 11th Day of April, 2011 ORDER The counter petitioner in a proceedings under section 125 Cr.P.C is the revision petitioner as he is aggrieved by the ex parte order dated 18.11.2009 in M.C.No.103 of 2009 of the Family court Kottayam. 2. As per the impugned order, the learned Magistrate after setting ex parte the revision petitioner, directed him to pay maintenance at the rate of Rs.750/- to the first claimant and a sum of Rs.500/- each per month to the claimants 2 and 3 from the date of the petition. 3. Counsel for the petitioner submitted that the petitioner is a heart patient and because of his illness he could not appear before the court below. 4. Having regard to the facts and circumstances involved in the case, I am not proposed to enter into any finding on merit at this stage in this petition. According to me it is only just and proper to relegate the petitioner to approach the Family court by invoking the proviso to RP(FC) 98/11 -:2:- section 126(2) Cr.P.C. But it is relevant to note that the claimants have approached the court below as early as on 30.3.2009, by filing a petition under section 125 Cr.P.C. Though the impugned order was passed on 18.11.2009, so far no amount is seen paid to the complainant. Therefore, the revision petitioner can be permitted to invoke the proviso to Section 126(2) Cr.P.C only on condition, making a substantial payment towards the maintenance. In the result, this Cr.R.P is disposed of relegating the petitioner to approach the Family court, Kottayam, invoking the proviso to Section 126(2) Cr.P.C to set aside the impugned ex parte order on condition, the petitioner deposits a sum of Rs.12,000/- in the said court within one month from today and on further condition that the petitioner files a petition under the proviso to Section 126(2) within 45 days from the date of remittance of the above amount in the court below. On satisfaction of compliance of the above conditions, the Family court is directed to consider his petition on merit after hearing the revision petitioner and the respondent and to pass appropriate orders. On depositing RP(FC) 98/11 -:3:- the above amount, the claimants are free to withdraw the same on an application filed in this regard before the Family court. Coercive steps if any pending against the revision petitioner shall be kept in abeyance for a period of one month from today. V.K.MOHANAN, JUDGE kvm/-