IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 Crl.Rev.Pet.No. 2263 of 2009() ---------------------------------------- MC.96/2007 of CHIEF JUDICIAL MAGISTRATE, KALPETTA .................... REVN. PETITIONER/ RESPONDENT: ------------------------------------------------------- K.M.SAIDALAVI,S/O.MOIDEENKUTTY KOLAKKOTH MECHERI VIRIPPADATH HOUSE PANTHEERANKAVU PO. POOLENKARA VIRIPPADATH DESOM KOZHIKODE TALUK, KOZHIKODE, P/A K.M.MOIDEENKUTTY, SAIDALI, DO.DO. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT: -------------------------- FATHIMATH ZUHRA, D/O.ABOOBACKER PARAMABATH KATTIL HOUSE, THARIYODU-8TH MILE POST, VIA.PAZHUTHANA-KALPETTA, WAYANAD. ADV. SRI.C.KHALID FOR R1 SRI.N.GOPINATHA PANICKER FOR R1 SRI.R.O.MUHAMED SHEMEEM FOR R1 SRI.T.P.SAJID FOR R1 SMT.NAMITHA JYOTHISH FOR R1 SRI.C.KHALID FOR R1 SRI. C.S. HRITHWIK, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 2263/2009 ORDER ON CRL. M.A NO.6827/2009 IN CRL R.P NO.2263/2009 DISMISSED SD/- 22/07/2009 THOMAS P. JOSEPH, JUDGE /TRUE COPY/ P.A. TO JUDGE Sbna/- THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2263 of 2009 --------------------------------------- Dated this 22nd day of July 2009 ORDER Heard both sides. 2. This revision is in challenge of an ex-parte order under Sec.3(2) of the Muslim Women (Protection of Rights on Divorce) Act (for short, “the Act”). As per the impugned order, petitioner has been directed to pay a total sum of Rs.453800/- to the respondent. According to the petitioner, respondent has obtained an ex-parte decree for divorce based on which she preferred the petition under Sec.3(2) of the Act and even though his proper address abroad was known to the respondent, notice was caused to be issued to him in his local address which has returned with the endorsement that he went abroad. Later, a paper publications is said to have been effected based on which petitioner was set ex-parte order and evidence of respondent was recorded. According to the petitioner, he has already filed an application in the Family Court to set aside the ex-parte decree for divorce. Petitioner seeks an opportunity to contest the petition claiming that he had no notice of the proceeding in the court below. Learned counsel for respondent contended that appropriate substituted service was affected before petitioner set ex-parte. 3. Question for consideration is whether petitioner had notice about the proceeding in the court below. Whether his non appearance Crl.R.P.No.2263 of 2009 2 in the court below was for “good cause” is a matter primarily to be decided by the court below. Proviso 2 rule 4 of the Muslim Women (Protection of Rights on Divorce) Act 1986 enabled petitioner to request the court below to set aside the ex-parte order on showing “good cause”. The proper course open to the petitioner is to approach court below with such a request, if necessary requesting the court below to condone the delay in moving the application. In the circumstances the proper cause is to dispose of this revision without prejudice to the right in any of petitioner to move proper application as aforesaid. Resultantly this revision petition is dismissed without prejudice to the right, if any of the petitioner to move the court below to set aside the exparte order. Execution of warrant if any against the petitioner will remain in abeyance for a period of three weeks from today or till the court below passes appropriate order in that matter, whichever is earlier. THOMAS P JOSEPH, JUDGE Sbna/