IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 RPFC.No. 206 of 2009() ---------------------------- AGAINST THE ORDER DATED 29/05/2009 IN CMP.164/2009 IN MC.762/2008 of FAMILY COURT, MALAPPURAM .................... PETITIONER/PETITIONER/RESPONDENT: ----------------------------------------------- NAMBRATH THOUFEEQUE, S/O. POCKER, MAMBRATH HOUSE, IRIMBILIYAM, P.O. PURAMANNOOR, MALAPPURAM - 676 552. BY ADVS. MR.MOHAN PULIKKAL MS.MANJU RAJAN MS .T.U.VINOD RESPONDENT: RESPONDENT/PETITIONER -------------------------------------------------- KUNNATHODI THAHIRA, D/O. MOTHEEN KUTTY, KUNNATHODI HOUSE, IRIMBILIYAM, P.O. VALIYAKUNNU - 676 552, MALAPPURAM DISTRICT. ADVS. MR.P.VIJAYA BHANU FOR R1 MR.P.VENUGOPAL (1086/92) FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 06/07/2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.P.(F.C).No. 206 of 2009 --------------------------------------- Dated this 06th day of July 2009 ORDER Heard counsel for petitioner and respondent. 2. This revision is in challenge of order dated 29-05-2009 on C.M.P.No.164 of 2009 in M.C.No.762 of 2008 of Family Court, Malappuram. Petitioner suffered an ex-parte order for payment of maintenance to the respondent, his wife at the rate of Rs.2000/- per month payable from 15-11-08. Petitioner filed C.M.P.No.164 of 2009 to set aside the ex parte order stating that he was prevented by sufficient cause from not appearing in the court below. Learned Judge passed a conditional order on 15-02-09 directing that if petitioner deposited the entire arrears as on that day on or before 12p.m on 29-05-09 C.M.P.No.164 of 2009 would stand allowed. Petitioner could not comply with that order and consequently C.M.P.No.164 of 2009 was dismissed. That order is under challenge in this revision. Learned counsel for petitioner submits that petitioner is an autorikshaw driver and was not able to raise the sum of Rs.14,000/- for payment of the arrears as ordered by the learned Judge. Learned counsel requested that petitioner may be given an opportunity to contest the case. According to learned counsel for respondent there is no merrit in this revision. 2. When this matter came for admission before me on 15-06- R.P.F.C.No.206 of 2009 2 09 I directed as per order on Crl.M.A.No.5634 of 2009 that petitioner shall deposit 20% of the arrears in the court below within two weeks from that day. Accordingly petitioner has deposited Rs.2800/- in the court below which it is not disputed has been withdrawn by the respondent. 3. Now the question is whether petitioner should be given opportunity to contest the case. His marriage with the respondent is not under challenge. According to learned counsel, petitioner is not liable to pay maintenance and at any rate the amount of maintenance claimed and awarded are beyond the paying capacity of the petitioner. 4. Learned judge had allowed C.M.P.No.164 of 2009 though subject to the condition aforesaid which the petitioner was not able to comply, allegedly due to his financial difficulties. Having regard to the facts and circumstances I am inclined to give petitioner an opportunity to contest the case considering the sum of Rs.2800/- already deposited and paid to respondent as condition for reopening of the case. At the same time, respondent cannot be ask to starve until disposal of M.C.No.762 of 2008. Hence to sustain the respondent, arrangement has to be made. Petitioner even according to him is an autorikshaw driver is not shown to be disabled and hence should be deemed to be capable of earning. He has to pay Rs.1,000/- per month to the respondent by way of interim maintenance till the disposal of R.P.F.C.No.206 of 2009 3 M.C.No.762 of 2008. Resultantly, this revision is allowed. The order in C.M.P.No.164 of 2009 is set aside and that petition will stand allowed. The order in M.C.No.762 of 2008 is consequently set aside. The court below shall give the petitioner an opportunity to contest the case. Both sides will get an opportunity to adduce evidence. Petitioner is directed to pay the respondent Rs.1,000/- (Rupees One Thousand Only) per month by way of interim maintenance from 01-07-2009 onwards and until disposal of M.C.No.762 of 2008. The sum of Rs.2800/- already paid to the respondent shall be adjusted in the amount payable after the disposal of M.C.No.762 of 2008. Parties shall appear in the court below on 03-08-09. THOMAS P JOSEPH, JUDGE Sbna/