IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 RPFC.No. 90 of 2011() ------------------------------- MC.NO.931/2009 of FAMILY COURT, MALAPPURAM .................... REVISION PETITIONER/ RESPONDENT --------------------------------------------------------- KABEER AHAMMED S/O.KUNHIMUHAMMED, ENTHALI HOUSE THIRUVILAMKUNNU P.O, ALANALLUR VIA, MURIYAKANNI, PALAKKAD DISTRICT. BY ADV. SRI.K.M.SATHIANATHA MENON RESPONDENT(S)/PETITIONERS ------------------------------------------------ 1. THAHIRA. K, D/O.ABDUL AFIR, KOLLASSERI, KARULAYI P.O, NILAMBUR TALUK, MALAPPURAM DISTRICT. 2. SABEER AHAMMED (MINOR) AGED 8 YEARS S/O.THAHIRA K, REPRESENTED BY HIS GUARDIAN MOTHER IST RESPONDENT THAHIRA. K R1 & R2 BY ADV. SRI.V.RAJENDRAN SMT.A.S.BEENU THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S.SATHEESACHANDRAN, J -------------------------------------- R.P(F.C) No.90 OF 2011 ----------------------------------------- Dated this the 19th day of August 2011 ORDER Challenge in the revision is against the orders passed in common in two petitions filed by the revision petitioner/husband for setting aside the exparte order with a petition to condone delay, passed by the learned Judge, Family Court, Malappuram, in a proceeding under Section 125 of the Code of Criminal Procedure, by which maintenance at the rate of `3,000/- to the wife and `800/- to the child per month had been awarded exparte. 2. Notice given, the respondents have entered appearance. 3. I heard the counsel on both sides. If some time is given, the petitioner/husband is prepared to remit the entire arrears of maintenance as awarded under the exparte order without prejudice to his right, to determine the actual quantum of maintenance, if any, found payable, after being given an opportunity to lead evidence setting aside the exparte order, is the submission of his counsel. The arrears of maintenance, on date, covered under the exparte order comes to `72,000/-, and according to the respondent/wife, a sum of `3,500/- alone thereof has been paid, which, however, is R.P.(F.C) No.90 OF 2011 - 2 - disputed by the petitioner's counsel contending that a sum of `5,100/- has been deposited. Taking note of the submissions made above and also other circumstances presented that the order of awarding maintenance has been passed exparte against the husband and also that it would be more beneficial to the respondent/wife and child to get the arrears of maintenance as fixed under the exparte order subject to adjustment after having a decision on merits as well I find that the exparte order can be set aside subject to the following conditions. 1) Petitioner/husband shall remit the entire arrears of maintenance due to the wife and child, in terms of the amount fixed under the exparte order, within a period of two months from today before the court below, calculating the arrears due as on the date of deposit. If such amount is deposited, the 1st respondent will be entitled to get release of that amount from the court below. 2) In the event of such deposit within the time fixed as above by this court, the exparte order shall stand set aside, and both parties will be allowed to lead evidence in respect of their respective case set up in the proceedings. 3) During the continuance of the proceedings of setting aside the exparte order, the petitioner /husband shall pay a sum of `2,000/- to the wife and `800/- to the child per month as interim maintenance till the completion of the proceedings. R.P.(F.C) No.90 OF 2011 - 3 - 4) In reckoning the arrears to be deposited, whatever amount paid directly to the wife after passing of the order, subject to acknowledgment or receipt obtained, shall also be given credit to the petitioner while depositing the balance due on the arrears of maintenance. The learned Judge, Family Court shall make every endeavour to dispose the case, in the event of the compliance of the direction of deposit within the time fixed, and restoration of the petition, as expeditiously as possible, at any rate within a period of six months from the date of restoring the petition. In case the deposit of arrears is not made as directed within the time stipulated, no further proceeding is to be taken by the court below, and the exparte order shall remain undisturbed. 5. Parties are directed to appear before the Judge, Family Court, Malappuram on 20-10-2011. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge