IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 WP(C).No. 11464 of 2008(S) -------------------------- AGAINST THE ORDER DATED 24/03/2007 IN IA 2261/2007 IN OP.73/2007 of FAMILY COURT, MALAPPURAM .................... PETITIONER : RESPONDENT: -------------------------- SABU N.J. @ SABUKUTTY, S/O.JOSEPH, NEDUMMARATH VEEDU, PALAKKAYAM P.O., KUNDAMPOTTY, PALAKKAD DISTRICT. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT : PETITIONER: -------------------------- P.V.ROSLIN, W/O.N.J.BABOO, PUTHIYAKUNNEL, CHALIKKAL P.O., MUNDERI, NILAMBUR, MALAPPURAM DISTRICT. ADV. SRI.P.SAMSUDIN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(C) No.11464 of 2008 ------------------------------------- Dated this the 16th day of November, 2009 JUDGMENT BASANT, J. This Writ Petition has been filed by the petitioner/husband against an order passed by the Family Court allowing subject to conditions the prayer to set aside an exparte order passed against him subject to conditions. 2. The marriage is admitted. An application for divorce filed by the wife already stands allowed and an appeal against that is pending before this Court as Mat.Appeal No.21 of 2007. The same has already been admitted by separate orders. 3. The claimant/wife had filed an application claiming amounts from the appellant. The petitioner remained exparte and the court below decreed the said petition exparte. An application was filed to set aside the exparte order and in that application the learned Judge of the Family Court directed that the exparte order be set aside on condition that the petitioner deposits 5% of the entire amount due under the impugned W.P(C) No.11464 of 2008 2 decree along with cost of Rs.600/-. Time was given to make payment of the said amount also. 4. The amount has not been paid so far and the learned counsel for the petitioner submits that the petitioner is not in a position to pay the amount even now. 5. The impugned order is a final order and not an interlocutory order adopting any standards. The impugned order is hence appealable under Section 19 of the Family Courts Act. No appeal has been preferred. But in the circumstances of the case, we choose to ignore that technicality. We have considered the challenge against the impugned order on merits. We are satisfied that there is no sufficient reason advanced before courts to justify interference with the impugned order. 5% of the amount was directed to be deposited and an amount of Rs.600/- has been awarded as cost. On a date when the case was posted for trial, the petitioner had not entered appearance and the court below evidently felt that the attempt was to prolong and protract the proceedings and thus frustrate the claim of the wife. We are not satisfied that the impugned order warrants any interference. W.P(C) No.11464 of 2008 3 6. The learned counsel for the petitioner/husband was requested to explain whether the petitioner will at least now show his bona fides by depositing the amount as directed by the court below after a lapse of more than one year. The counsel submits that the petitioner will not be able to make such deposit. 7. We are not satisfied in any view of the matter that the impugned order warrants interference by invocation of our jurisdiction under Section 19 of the Family Courts Act, much less by invocation of the Constitutional jurisdiction under Article 227 of the Constitution of India. The challenge against the impugned order fails. This Writ Petition is accordingly dismissed. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-