IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 Mat.Appeal.No. 575 of 2010() (AGAINST COMMON ORDER DT.8.4.2010 IN I.A.2579 OF 2009 IN O.P. NO. 124 OF 2009 OF FAMILY COURT, MALAPPURAM) ---------------------------- PETITIONER: APPELLANT. ------------------------- M.MANIKANDAN, S/O.VELAYUDHAN, MANIKANDA NIVAS, 22ND MILE MULLAMBRA ROAD, MANJERI. BY ADV. SRI.BINDU SREEKUMAR RESPONDENTS: --------------- 1. RIJU.P.V., D/O.P.V.BALAN, SNEHA, BEACH ROAD, TANUR. 2. NAYANA, 7 YEARS, (MINOR), REPRESENTED BY GUARDIAN MOTHER 1ST RESPSONDENT. ADV. SRI.JOICE GEORGE FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17/01/2011, ALONG WITH MAT.A.576 /10 AND RPFC.224/10. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.Appeal Nos. 575 and 576 of 2010 AND R.P.F.C. No. 224 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of January 2011 JUDGMENT K. M. Joseph J., Mat.Appeal No. 575 of 2010 is filed against the order passed in I.A. No. 2579 of 2009 in O.P. No. 124 of 2009 by the appellant seeking the custody of the minor child. Mat. Appeal No. 576 of 2009 is filed by the appellant against the order passed in I.A. No. 2580 of 2009 in O.P. No. 56 of 2009 for restitution of conjugal rights. R.P.F.C. No. 224 of 2010 is filed by the appellant against C.M. P. No. 248 of 2010 in M.C. No. 140 of 2009 of Family Court, Malappuram. 2. It can be seen that M.C. No. 140 of 2009 was filed by the respondent seeking maintenance under Sec. 125 of the Code of Criminal Procedure and maintenance has been ordered. The husband filed applications against the same common order to set Mat.Appeal Nos. 575 /10 and cnnctd cases. - : 2 :- aside the exparte order passed against him alleging that the father of the appellant was not well. This explanation was not accepted by the Family Court and the Family Court subsequently passed orders against him. 3. We heard the learned counsel for the appellant and the learned counsel for the respondent. 4. Learned counsel for the respondent submitted that the appellant has not paid the cost on the basis of which the Court has ordered earlier to set aside the exparte order. The fact remains that there is no adjudication on merits. In view of the nature of the case, namely the custody of the child and restitution of conjugal rights particularly in a marriage, where there is a child, we feel that there must be an adjudication on merits. We take a liberal view and allow the appeals and also the revision petition and set aside the common order on condition that the appellant/petitioner paying an amount of Rs.6,000/- by way of cost to respondents within a period of three weeks from today. Mat.Appeal Nos. 575 /10 and cnnctd cases. - : 3 :- 5. We further direct that the interim order passed in R.P. F.C. No. 224 of 2010 shall continue in force till the disposal of the petition. It is also directed that the arrears of maintenance ordered by the Family Court shall be paid within one month from today. If the appellant/ petitioner deposits the cost and also the arrears of maintenance as aforesaid, the Family Court will take up O.P. No. 124 of 2009, 56 of 2009 and also M.C. No. 140 of 2009 and dispose of the same at the earliest. K.M. JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/ * - The first sentence in paragraph 5, page No.3 of the common judgment dated 17.1.2011 in Mat.Appl. 575/2010, 576/2010 and RPFC 224/2010 reading, “we further direct that the interim order passed in Mat.Appeal Nos. 575 /10 and cnnctd cases. - : 4 :- R.P.F.C No.224 of 2010 shall continue in force till the disposal of the petition.” is substituted by the sentence “We direct that the appellant shall pay at the rate of Rs.3,000/- per month by way of maintenance to the wife and child for the period commencing from January 2011 onwards”. vide order dated 09/03/2011 in R.P. 169/2011 in Mat.Appeal 576/2010.