IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 RPFC.No. 322 of 2008() ---------------------- MC.326/2003 OF THE FAMILY COURT, KOLLAM .................... PETITIONER/RESPONDENT ------------------------------ LEMBODHARAN S/O.NEELAKANTAN, AGED 71, RESIDING AT SURESH BHAVAN, NENMENTI MURI, MANDROTHURUTH VILLAGE KOLLAM. BY ADV. SRI.R.S.KALKURA SRI.HARISH GOPINATH RESPONDENTS/PETITIONERS: ----------------------------------------- 1. THANKAMONY, D/O. LEKSHMY, AGED 53, RESIDING AT SANTHOSH BHAVAN MANDROTHURUTHU P.O.,NENMENI THEKKU WARD MANDROTHURUTHU VILLAGE, KOLLAM. 2. PRANAVJITH (MINOR) RESIDING AT SANTHOSH BHAVAN, MANDROTHURUTHU P.O., NENMENI THEKKU WARD MANDROTHURUTHU VILLAGE, KOLLAM . 3. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.ANCHAL C.VIJAYAN FOR R1-2 SMT.MINI.S.DAS FOR R1-2 R3 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 322 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of October, 2008 O R D E R The petitioner in this revision petition challenges an ex parte order passed against him obliging him to pay maintenance at the rate of Rs.1,500/- and Rs.1,000/- p.m. respectively to the claimants, who claimed to be his wife and child. 2. This battle had started long back and the claim for maintenance under Section 125 Cr.P.C. was preferred as early as on 11.9.2003. The petitioner had received notice and had entered appearance. He had filed his objections also disputing the marriage and paternity. In the course of the proceedings, he defaulted in appearance. On the first date of default, his application to condone his absence was allowed on cost. He did not pay the cost or appear on the next date. It was then that he was set ex parte. The petitioner did not go before the Family Court under the proviso to section 126 Cr.P.C. to get the ex parte order set aside. He did not promptly challenge the order before R.P.F.C.No. 322 of 2008 2 this Court . He filed this revision petition along with an application to condone the long and inordinate delay of 223 days in filing the revision petition. The application for condonation of delay was allowed with the observation that appropriate terms shall be imposed while disposing of the revision petition itself. 3. Arguments have been heard. There is absolutely no justifiable reasons shown for the inordinate delay of 223 days in filing this revision petition. There is also no satisfactory explanation offered as to why the petitioner had not moved the Family Court to get the ex parte order set aside. I do look at the nature of the contentions the petitioner wants to raise. I am satisfied that the interests of justice will be served eminently by granting the petitioner an opportunity to contest the proceedings and by directing the Family Court to dispose of the case afresh. But adequate terms must be imposed in the interests of justice. 4. As directed by this Court an amount of Rs.25,000/- has already been deposited before the Family Court as per order dt.14.9.2008. I am satisfied that the said amount can be directed to be R.P.F.C.No. 322 of 2008 3 paid to the respondent as price for getting the impugned order set aside. Under no event shall the said amount be liable to be returned to the petitioner. But if ultimately the maintenance were ordered, the said amount shall be set off against the liability, if any, to make payment under Section 125 Cr.P.C. for the period prior to this date. 5. In the result: a) This revision petition is allowed. b) The impugned order is set aside subject to conditions. c) The parties shall appear before the Family Court on 24.11.2008 to continue the proceedings. The learned Judge of the Family Court shall dispose of the claim afresh in accordance with law as expeditiously as possible. d) The amount of Rs.25,000/- in deposit shall be released to the respondents/claimants, who shall in no event be liable to return the same to the petitioner. e) If maintenance were ultimately ordered and there is any liability to pay maintenance for the period prior to this date, the amount of Rs.25,000/- ordered to be released to the petitioner shall be set off R.P.F.C.No. 322 of 2008 4 against such liability alone. The said amount shall forthwith be released to the respondents. 6. The learned counsel for the petitioner submits that the petitioner is ill and would find it very difficult if his personal presence is insisted on all dates of posting. There is no chance of any settlement, considering the nature of the disputes raised. In these circumstances his personal presence may not be insisted ritualistically, it is prayed. The petitioner can make this request before the Family Court. I need only observe that unnecessary insistence of personal presence need not be made by the learned Judge, unless such personal presence be necessary for making progress in the trial of the case. (R. BASANT) Judge tm