IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 WP(C).No. 27257 of 2009(R) -------------------------------------- OP.319/2009 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): ---------------------- ABDUL JALEEL, S/O. MOIDEEN, VADAKKETHODI HOUSE, PALLIKKAL BAZAR, MALAPPURAM DISTRICT. BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN RESPONDENT(S): ------------------------- SAMEERA, D/O. NALAKATH MUHAMMED, ALUNGAL HOUSE, THENHIPPALAM, MALAPPURAM DISTRICT. BY ADV. SRI.R.RAMADAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27257 of 2009 -2- APPENDIX: PETITIONER'S EXHIBITS: EXT.P1..THE TRUE COPY OF THE ORDER IN O.P.NO.319/09 PASSED BY THE FAMILY COURT, MALAPPURAM. EXT.P2..TRUE COPY OF THE APPLICATION IN I.A.NO.1203/09 IN O.P.NO. 319/09 PASSED BY THE FAMILY COURT, MALAPPURAM. EXT.P3..THE TRUE COPY OF THE OBJECTION IN I.A.NO.1203/09 IN O.P.NO. 319/09 PASSED BY THE FAMILY COURT, MALAPPURAM. EXT.P4..THE TRUE COPY OF THE ORDER IN I.A.NO.1203/09 IN O.P.NO. 319/09 PASSED BY THE FAMILY COURT, MALAPPURAM. K.M.JOSEPH & P.Q.BARKATH ALI, JJ. ------------------------------------------------------ W.P.(C) No.27257 of 2009-R ---------------------------------------------- Dated, this the 14th day of January, 2010 J U D G M E N T K.M.Joseph, J. Petitioner challenges Ext.P4 order to the extent of the condition imposed. Petitioner is the respondent in O.P.No.319 of 2009 on the file of the Family Court, Malappuram. O.P.No.319 of 2009 is filed by the respondent under Section 7 (1) Explanation 9 of the Family Court Act claiming past maintenance and for return of gold ornaments. Petitioner is the husband of the respondent. By Ext.P1 order the said O.P is allowed directing the petitioner to pay past maintenance. Ext.P1 is the exparte order. Petitioner filed application to set aside the exparte order. That application has been allowed by Ext.P4 order on condition that the petitioner must deposit 10% of the decreetal amount. 2. We heard the learned counsel for the petitioner and learned counsel for the respondent. 3. Learned counsel for the petitioner submits that W.P.(C) No.27257 of 2009 -2- the petitioner was working abroad and that is why he could not appear. The learned counsel would further submit that the petitioner is not having any employment now. He further submits that there is a possibility of the matter being settled. Learned counsel for the respondent would submit that the petitioner has withdrawn Rs.80,824/- for the purpose of going abroad from the account of the wife. It is also pointed out that part of the decree amount is towards past maintenance. 4. Having regard to all circumstances we feel that instead of directing depositing of 10% of the decreetal amount interest of justice would be better served if we direct the petitioner to deposit Rs.40,000/- as a condition for allowing the petition filed by the petitioner to set aside the exparte order. The writ petition is allowed in part and we modify Ext.P4 order and allow the I.A. to set aside Ext.P1 on condition that the petitioner deposits Rs.40,000/- within two weeks from today. It is submitted that petitioner has already deposited Rs.20,000/-. If the petitioner has already deposited Rs.20,000/- credit can be given for the said amount. If the said amount is not deposited, petitioner must W.P.(C) No.27257 of 2009 -3- deposit Rs.40,000/- (Rupees forty thousand only) within two weeks from today as a condition for setting aside the exparte order. If the amount as directed is not deposited this writ petition will stand dismissed. Further, we make it clear that this judgment should not be understood as meaning that we are interfering with the direction to pay Rs.5,000/- as cost in I.A.No.1204/2009. The writ petition is allowed as above. Sd/= (K.M.JOSEPH) JUDGE. Sd/= (P.Q.BARKATH ALI) JUDGE. MS