IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 WP(C).No. 27131 of 2009(R) -------------------------- OP. 794 /2007 & MC.849/2007 of FAMILY COURT, MALAPPURAM .................... PETITIONER: --------------- S/O.MOIDEEN PATHIYIL HOUSE, A.C.BAZAR, MOONNIYOOR PO, TIRURANGADY TALUK, MALAPPURAM DIST. BY ADV. SRI.PRAVEEN K. JOY SRI.ABHILASH MATHEW RESPONDENT(S): --------------- 1. SAHIRA PUNGADAN HOUSE, VENNIYOOR PO, TIRURANGADY TALUK, MALAPPURAM DIST. 2. SHAMNA SHERI(MINOR), D/O.SAHIRA PUNGADAN HOUSE, VENNIYOOR PO, TIRURANGADY TALUK, MALAPPURAM DIST. REP.BY MOTHER AND NATURAL GURADIAN SMT.SAHIRA. ADV. SRI.K.P.SUDHEER FOR R1 & R2 SMT.P.JAYALAKSHMI FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No. 27131/09 PETITIONER'S EXTS: EXT.P1: TRUE PHOTOSTAT COPY OF THE RECEIPT DATED 25.11.08 FOR RS.10,000/-. EXT.P2: TRUE PHOTOSTAT COPY OF RECEIPT DATED 1.4.09 FOR RS..5000/- EXT.P3: TRUE PHOTOSTAT COPY OF THE RECEIPT DATED 1.4.2009 FOR RS.11,500/- EXT.P4: TRUE PHOTOSTAT COPY OF THE EX PARTE ORDER IN OP.794/07 BEFORE THE FAMILY COURT, MALAPPURAM. EXT.P5: TRUE PHOTOSTAT COPYTHE EX PARTE ORDER IN M.C.849/07 OF FAMILY COURT, MALAPPURAM. EXT.P6: TRUE PHOTOSTAT COPY OF THE INTERLOCUTORY APPLICATION NO.975/09 IN OP.794/07 EXT.P7: TRUE PHOTOSTAT COPY OF I.A.No.974/09 IN OP 794/07 BEFORE THE FAMILY COURT, MALAPPURAM. EXT.P8: TRUE PHOTOSTAT COPYOF c.m.p.nO.636/09 IN MC.849/07 EXT.P9: TRUE PHOTOSTAT COPY OF CMP.635/09 IN MC.849/07 BEFORE FAMILY COURT, MALAPPURAM. EXT.P10: TRUE PHOTOSTAT COPYOF THE ORDER DATED 22.7.09 IN I.A.No. 974/09 AND 975/09 IN OP 794/07 AND C.M.P.NO.635 AND 636/09 IN MC. 849/07 OF FAMILY COURT , MALAPPURAM. EXT.P11: TRUE PHOTOSTAT COPY OF THE NOTICE IN CMP(EX)NO.834/09 IN MC. 849/08 BEFORE THE FAMILY COURT, MALAPPURAM. R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- W.P.(C)No.27131 OF 2009 R ----------------------------------------------------- DATED THIS THE 16th DAY OF DECEMBER, 2009 J U D G M E N T Basant, J. Petitioner and the 1st respondent are spouses. The 2nd respondent is a minor child born in the wedlock. Respondents had staked claims for maintenance – past and future. Future maintenance was claimed under Section 125 Cr.P.C. The petitioner was set ex parte and ex parte orders were passed directing payment of maintenance, both in the O.P.(past maintenance) and in the M.C.(future maintenance under Section 125 Cr.P.C.). The petitioner filed applications to get the ex parte order set aside. Those petitions were filed along with applications for condonation of the long delay of 464 days. The court below dismissed the said petitions by the impugned order, copy of which is produced as Exhibit P10. Petitioner claims to be aggrieved by the impugned order. 2. We have heard both counsel. We are satisfied that the matter can now be disposed of as agreed by both counsel. In view of the agreement, we are not going into the question as to why a Mat.Appeal and R.P.(FC) are not filed and a W.P.(C) is filed to W.P.(C)No.27131/09 -2- challenge the impugned common order. In the light of the submission that there is still a chance of harmonious re-union of the parties, we are not going into that technical question and are accepting the submissions of the counsel. In the result: (a) this Writ Petition is allowed subject to conditions. (b) this Writ Petition shall stand allowed and Exhibit P10 order shall stand set aside on the following terms and conditions. (i) The petitioner shall deposit before the Family Court or pay to the respondents, the entire amount due as per the order in M.C.No.849/2007 till 31.1.2010 (less amounts if any paid already) on or before 01.02.2010. If the amount is deposited, the same shall forthwith be released to the respondents. The impugned direction to pay maintenance shall continue to remain in force as an interim direction for payment of maintenance till the disposal of the M.C. (ii) The petitioner shall furnish security for the W.P.(C)No.27131/09 -3- entire amount due under the impugned ex parte order in O.P.No.794/2007 to the satisfaction of the Family Court on or before 31.1.2010. (iii) If the amounts are deposited and security is furnished as directed above, the impugned order shall stand set aside and the Family Court shall dispose of O.P.No.794/2007 and M.C.No.849/07 afresh in accordance with law after giving the parties opportunity to adduce evidence. (iv) Parties shall appear before the Family Court on 01.02.2010. If payments are not made and security is not furnished as directed above, the Family Court shall record that fact and in that event the impugned ex parte order shall continue to remain in force. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. W.P.(C)No.27131/09 -4- dsn