IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 WP(C).No. 13113 of 2005(J) -------------------------- AGAINST THE ORDER IN IA 3020 2004 IN OP.174/2004 of FAMILY COURT, THIRUVALLA .................... PETITIONERS: ---------------------- 1. NARAYANAN NAIR, PADINJARETHENOLIL VEEDU, KOTTANGAL VILLAGE. 2. BHAVANIAMMA, W/O.NARAYANAN NAIR, .... DO...... BY ADV. SRI.M.V.S.NAMBOOTHIRY RESPONDENTS: ------------------------- 1. USHA KUMARI, PUTHUPARAMBIL VEEDU, PERUMPATTY VILLAGE. 2. HARSHA (MINOR), REPRESENTED BY 1ST RESPONDENT. 3. T.N.MOHAN KUMAR, PADINJARETHENOLIL VEEDU, KOTTANGAL VILLAGE. BY ADV. SRI.B.PREMOD - R1 & R2 SRI.R.PREM SANKAR - R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13113/2005 J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE M.C.6/1996 ON THE FILE OF THE J.F.C.M. COURT, THIRUVALLA. EXT.P2: COPY OF THE O.P.NO.174/04 ON THE FILE OF THE FAMILY COURT, THIRUVALLA. EXT.P3: COPY OF THE I.A.NO.3020/04 IN O.P.174/2004 PENDING ON THE FILE OF THE FAMILY COURT, THIRUVALLA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.13113 of 2005 ------------------------------- Dated this the 24th July, 2008. J U D G M E N T Petitioners are the parents of the third respondent. First petitioner is the father and second petitioner, the mother. First respondent is the wife and second respondent, the child of third respondent. First respondent on her behalf and also on behalf of the second respondent filed M.C.No.6 of 1996 before Judicial First Class Magistrate Court, Thiruvalla, against third respondent, claiming maintenance. It was allowed and third respondent was directed to pay maintenance at the rate of Rs.500/= to first respondent and Rs.350/= to second respondent. First respondent though filed an execution petition, maintenance could not be realised. After the establishment of Family Court at Thiruvalla, first respondent filed O.P.No.174 of 2004 before Family Court, Thiruvalla, claiming a decree for realisation of Rs.90,000/= towards arrears of maintenance for 36 months, Rs.25,000/= allegedly given at the time of marriage with the third respondent and also Rs.60,000/= being the value of gold ornaments. Third respondent remained ex parte in that proceedings. Petitioners were also parties in that proceedings. While the petition W.P.(C) No.13113 of 2005 2 was pending, petitioners remained absent and were set ex parte. They thereafter filed I.A.No.3020 of 2004, an application to review that order. It is pending. This petition was filed in the meanwhile under Article 227 of the Constitution of India for a direction to Family Court, Thiruvalla, to dispose of I.A.No.3020 of 2004, in accordance with law, before recording evidence in O.P.No.174 of 2004. 2. The learned counsel appearing for the petitioners and respondents 1 and 2 were heard. 3. The learned counsel appearing for respondents 1 and 2 submitted that inspite of the order granting maintenance, they could not realise any amount and O.P.No.174 of 2004 is pending before the Family Court, due to the order of stay granted in this petition, and either the petition may be disposed or respondents 1 and 2 may be granted interim maintenance. 4. On hearing the learned counsel appearing for the petitioners and respondents 1 and 2, it is clear that Family Court was not justified in proceeding with O.P. without passing appropriate order in I.A.No.3020 of 2004. Petitioners were set ex parte on their failure to appear and the petition filed to set aside the ex parte order was also W.P.(C) No.13113 of 2005 3 dismissed. It is in such circumstances I.A.No.3020 of 2004 was filed. Family Court is therefore directed to dispose I.A.No.3020 of 2004 without further delay, at any rate, within 30 days from the date of receipt of a copy of the judgment, and thereafter proceed with the trial of O.P.No.174 of 2004. Petitioners shall get ready in the application and shall not seek adjournment before the Family Court. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.