IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 29TH APRIL 2008 / 9TH VAISAKHA 1930 RPFC.No. 116 of 2008() ---------------------- AGAINST THE ORDER DATED 17/03/2008 IN 236/2008 IN CMP.235/2008 of Family Court, Malappuram .................... REVISION PETITIONER: ----------------- SRI.FAISAL,S/O.USMAN, AGED 28 YEARS, PALLITHODIKA HOUSE,BANGLAVU KUNNU, CHANDAKUNNU P.O., NILAMBUR,MALAPPPURAM DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT/STATE: ------------- 1. SAJNA P.,D/O.KOYA,AGED 20 YEARS, PARAMBATH HOUSE, KURADU P.O., MANHAPPETTY,VANIYAMBALAM, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BVY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.K.SURESH THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 22/04/2008, THE COURT ON 29/04/2008 PASSED THE FOLLOWING: V.K.MOHANAN, J. -------------------------------- R.P.F.C.No.116 of 2008 -------------------------------- Dated this the 29th day of April, 2008 O R D E R By a common order dated 17/3/2008 in C.M.P.Nos.235/2008 and 236/2008 in C.M.P.No.2827/2004 in M.C.No.91/04, the Family Court, Malappuram dismissed the above C.M.Ps. The point that formulated for consideration in the above order is on the submissions and averments made out to condone the delay of three years and 15 days in filing the petition to restore C.M.P.No.2827/20904. The petitioner is the respondent in M.C.No.91/04 pending before the Family Court in which an ex parte order was passed directing him to pay an amount of Rs.1,250/- as maintenance to the first respondent herein under Section 125 Cr.P.C. Being an ex parte order challenging the order to pay maintenance, the petitioner preferred C.M.P.No.2827/2004 and the same was allowed by the court below on condition to pay a sum of Rs.500/- towards cost. Since the petitioner was arrested and had undergone detention in connection with another crime, he could not pay the amount of Rs.500/- ordered as cost for setting aside the ex parte order. In R.P.F.C.No.116/2008 2 the meanwhile the maintenance ordered became due and the petitioner had paid a total sum of Rs.18,500/- to the respondent/claimant. Again on 27/11/2007, the petitioner was arrested for the non-payment of arrears of maintenance. It was in this background, the petitioner had preferred C.M.P.No.235/2008 to restore C.M.P.No.2827/2004. Since there was delay, he had filed C.M.P.No.236/2008 to condone the delay in filing the petition to restore C.M.P.No.2827/2004. It is the above petitions to condone the delay and to restore C.M.P.No.2827/04 are dismissed by the impugned common order. 2. I have perused the common order and I find no fault with the order passed by the Family Court. It is true that there is a delay of more than three years in preferring the petition for restoring the petition to set aside the ex parte order. Though the miscellaneous case for maintenance was filed during the year 2004, the respondent has got only a sum of Rs.18,500/-. From the averments contained in the above petition and from the impugned order, it can be seen that the order is not on merit. I am not proposed to go into the merits of those contentions etc. R.P.F.C.No.116/2008 3 Now the prayer of the petitioner is that he may be released from jail as he is detained in jail in execution of the warrant issued by the court below and he is prepared to pay some amount towards arrears. As a matter of fact, this Miscellaneous Case was filed during the year 2004. Except the amount of Rs.18,500/- no amount was paid to the respondent/claimant and if the petitioner is remained under imprisonment, the respondent/wife may not be in a position to enjoy the order already passed in favour of her. Therefore, I am inclined to dispose of this revision petition directing the petitioner to deposit substantial amount and on depositing such amount to release him from the jail. Therefore, the above revision petition is disposed of on the following terms. i) The petitioner shall pay a sum of Rs.1,500/- (Rupees one thousand five hundred only) as cost to the respondent/wife within three weeks from today and a memo shall be filed before the court below evidencing the payment. ii) The petitioner shall deposit an amount equal to one third of the total arrears of maintenance before the Family Court, Malappuram within a period of three weeks from today. R.P.F.C.No.116/2008 4 3. In the event of depositing the amount as aforesaid, the Family Court, Malappuram is directed to issue release memo for the release of the petitioner forthwith. 4. The court below can take appropriate decision regarding the disbursement or otherwise of the amount so deposited by the petitioner. 5. The court below can proceed with the matter further and dispose the same in accordance with the law. This revision petition is disposed of accordingly. (V.K.MOHANAN,JUDGE) jsr R.P.F.C.No.116/2008 5