IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH MARCH, 2011 / 23RD PHALGUNA 1932 RPFC.No. 408 of 2010 ----------------------------- (Order dtd.22.9.2010 in MC.187/2009 of the Family Court, Thrissur) .................... REVISION PETITIONER/RESPONDENT -------------------------------------------------- SIJU, AGED 33 YEARS, S/O.LATE DAVIS, THOPPIL HOUSE, VALLACHIRA P.O., CHERPU, THRISSUR. BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT(S): PETITIONER ------------------------- LISONA, AGED 24 YEARS, D/O.JOHNY T.P., THRISSOKARAN HOUSE, CHENGALUR P.O., RANDAMKALLU, THRISSUR-680312. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J. ---------------------------------------------------------- R.P(FC).No. 408 of 2010 --------------------------------------------------------- Dated this the 14th day of March,2011 O R D E R The challenge in this Criminal Revision Petition is against the ex parte order dated 22.9.2010 in M.C.No.187 of 2009 of the Family Court, Thrissur by which the petitioner is directed to pay maintenance at the rate of Rs.2000/- per month to the claimant therein who is none other than the wife of the petitioner. 2. Learned counsel for the petitioner submitted that though the petitioner had appeared before the court below and engaged a lawyer, the court below subsequently issued an order for maintenance at the rate of Rs.2000/-, but the petitioner could not pay that amount and because of the non-payment, the court below issued Non Bailable Warrant during the pendency of the main matter and because of the warrant, he could not appear before the court below and contest the matter effectively. 3. When this matter came up for consideration, as ordered by RP(FC) No.408 of 2010 :-2-: this Court by order dated 10.12.2010 in Crl.M.A.No.11792 of 2010, the petitioner had deposited an amount of Rs.28,000/-, the arrears as on the date of that order. Counsel for the respondent pointed out that the petitioner has miserably failed to comply with the second direction contained in the order of this Court directing him to pay future maintenance at the rate of Rs.1500/-. 4. In view of the proviso to Section 126(2) of the Cr.P.C., in case the court issues an ex parte order directing to pay maintenance, the aggrieved person can approach the same court with a prayer to set aside the ex parte order showing good cause for his absence provided such an application is filed within three months from the date of such ex parte order. The petitioner has not approached the Family court by invoking the above statutory remedy probably because of the pendency of the Non Bailable Warrant, as submitted by the learned counsel. As an alternative remedy as provided in the Cr.P.C. itself is available, I am of the view that this Revision Petition can be disposed RP(FC) No.408 of 2010 :-3-: of relegating the petitioner to approach the Family Court resorting the proviso to Section 126(2) of the Cr.P.C. 5. There is no dispute regarding the marriage. It is also a fact that legal proceedings are pending between the same parties. Though the petition for maintenance was filed on 24.6.2009, so far no amount is seen paid other than the amount deposited in the Family Court on the basis of the order dated 10.12.2010 issued by this Court in Crl.M.A.No.11792 of 2010. It is also a fact, as pointed out by the learned counsel for the respondent, that the future maintenance as ordered by this Court has not been paid, so far and the same is also due. Therefore, while relegating the petitioner to approach the Family Court under Section 126(2) of the Cr.P.C., according to me, suitable conditions can be imposed. In the result, this Revision Petition is disposed of relegating the petitioner to approach the Family Court, Thrissur under Section 126(2) of the Cr.P.C. for setting aside the ex parte order on RP(FC) No.408 of 2010 :-4-: condition that the petitioner deposits the entire maintenance which is due as per the order dated 10.12.2010 in Crl.M.A.No.11792 of 2010 within one month from today and in case the petitioner deposits the above amount within the above time limit, the Family Court is directed to consider the petition to set aside the ex parte order, which may be preferred by the petitioner. The Family Court is free to deal with the amount, which will be deposited by the petitioner, in terms of this order. On filing such petition for setting aside the ex parte order, the Family Court is directed to dispose of the same in accordance with law, as expeditiously as possible, at any rate within three months from the date of filing such petition. The execution of warrant, if any, pending against the petitioner shall be deferred for a period of one month from today. V.K.MOHANAN, Judge. MBS/ RP(FC) No.408 of 2010 :-5-: