IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 RPFC.No. 121 of 2010() ---------------------- MC.251/2007 of THE FAMILY COURT, ERNAKULAM dtd.12.3.2009. .................... (S): REVISION PETITIONER/RESPONDENT -------------------------------------------------- K.H.SUDHEER, S/O.HUSSAIN, HOUSE NO.5/1151, PETTIKKARANAPARAMBU, MATTANCHERRY. BY ADV. SRI.T.RAJESH RESPONDENT(S): PETITIONERS -------------------------- 1. M.A.SHAHEERA, D/O.M.A.ABU, HOUSE NO.20/332 G, KANDATHIPARAMBIL, NAMBYAPURAM, PALLURUTHY. 2. SUHAINA (MINOR) REP. BY HER MOTHER M.A.SHAHEERA. BY ADV. SRI.R.O.MUHAMED SHEMEEM FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- R.P.(F.C.)No.121 of 2010 ------------------------------- Dated this the 21st day of July, 2010. O R D E R This revision petition is preferred by the respondent/ husband in M.C.No.251/07 on the file of the Family Court, Ernakulam, challenging the order dated 12.3.2009 in the above proceedings, which is instituted upon a petition preferred by the respondents herein u/s.125 of Cr.P.C. 2. I have heard the learned counsels for the revision petitioner as well as the contesting respondents. 3. In the impugned order, the Family Court, Ernakulam, directed the revision petitioner to pay the maintenance @ of Rs.1,500/- per month to each of the claimants with effect from 17.8.2007. It is the above order challenged in this revision petition. 4. The learned counsel for the revision petitioner submitted that, at the time of issuing the impugned order the revision petitioner was in gulf and as he was employed there and the R.P.(F.C.)No.121 of 2010 2 impugned order is issued without proper service and behind his back and then the same is an exparte order. It is also the contention of the learned counsel that, in pursuance to the impugned order, the respondents herein approached the Family Court for execution of the above order by filing Crl.M.P.No.239/09 and in pursuance to which arrest warrant is pending against the revision petitioner. 5. While this court admitted the revision petition on 30.3.2010, issued an interim order staying the operation of the impugned order on condition the petitioner depositing a sum of Rs.75,000/- towards the maintenance that is due as per the impugned order. It is also ordered that the revision petitioner shall continue to deposit the maintenance @ of Rs.2,200/- per month. The learned counsel for the revision petitioner submitted that he had strictly complied with the above order of this court. 6. During the pendency of this revision petition, the respondents herein preferred Crl.M.A.No.6275/10, seeking permission of this court to withdraw the entire amount deposited by the revision petitioner and the said prayer is stoutly opposed R.P.(F.C.)No.121 of 2010 3 by the counsel for the revision petitioner. 7. On a perusal of the available records and on hearing of the counsels for the revision petitioner as well as the respondents it appears to me that, there is no controvert that the marriage between the revision petitioner and the 1st claimant was taken place on 15.2.1998 and the 2nd claimant - the minor daughter Suhaina, born in that wedlock. It is also beyond dispute that, when the revision petitioner got visa, he went to Saudi Arabia during the month of January 2007 and on putting an end to his service there, he returned to India during the month of December 2009. Thus for a period of 3 years the revision petitioner was out of India. It is also beyond dispute that the impugned order dated 12.3.2009 was issued without hearing the revision petitioner. However, the fact that the revision petitioner and the respondent entered into a valid marriage and the marital relationship is still existing and a child is born in their wedlock, are not disputed. If that be so, I am of the view that this revision petition can be disposed of directing the revision petitioner to approach the Family Court by resorting S.126 of Cr.P.C. R.P.(F.C.)No.121 of 2010 4 challenging the exparte order. It is also submitted by both the counsels that, series of litigations are pending between the contesting parties. When the marriage is not disputed and the paternity of the 2nd claimant is also not disputed and especially when the revision petitioner was out of station for 3 years, I am of the view that, it is the responsibility and liability of the revision petitioner to maintain his wife and child during the above period and therefore the amount ordered by this court and deposited by the revision petitioner can be allowed to withdraw by the respondents but subject to certain conditions. In the result, this revision petition is disposed of relegating the revision petitioner to approach the Family Court, Ernakulam, by resorting S.126(2) of Cr.P.C. for setting aside the exparte order, if he so advised and it is for the Family Court to take decision upon such a petition on merit, if the revision petitioner approach the Family Court with such a prayer. In the light of the facts, reasons and discussions referred above it is ordered that, the respondents herein are free to withdraw a sum of Rs.50,000/- out of Rs.75,000/-, deposited by the revision R.P.(F.C.)No.121 of 2010 5 petitioner in terms of the order dated 30.3.2010 of this court in Crl.M.A.No.3329/10. The respondents are also free to withdraw the future maintenance amount being deposited by the revision petitioner. It is made clear that, based upon the outcome, on the petition proposed to move by the revision petitioner, for setting aside the exparte order, it is upto the Family Court to either decide the case afreshly or to reiterate its earlier decision. The Family Court, Ernakulam, is also directed to withdraw the coercive steps, if any, taken against the revision petitioner upon Crl.M.P.No.329/09. The Family Court is also directed to expedite the matter as early as possible. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/