IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 RPFC.No. 489 of 2007() ---------------------- AGAINST THE ORDER DATED 10/10/2007 IN CMP.2053 & 2054/2007 IN MC.455/2006 of FAMILY COURT, MALAPPURAM .................... : REVISION PETITIONER/PETITIONER ----------------------------------------------- K.P.NOUSHAD ALI, S/O.KUNHAHAMMED KOYA, KOLAMBADANNA HOUSE, NEAR KOOLITHARA ANGANWADI, P.O.MANKAVU, KOZHIKODE DISTRICT. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENTS: RESPONDENT ----------------------- MANAKKADAVAN SAIFUNNISA, D/O.HYDROSE, POOTHERIVALAPPIL HOUSE, CHELARI, VELIMUKKU P.O., MALAPPURAM. BY ADV. SRI.E.NARAYANAN THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ R.P.F.(C).No.489 of 2007 ------------------------------------- Dated this the 21st day of February, 2008 O R D E R This revision petition is directed against a common order passed by the Family Court in an application to set aside the expar\te order passed under Section 125 Cr.P.C and an application to condone the delay of 243 days in filing the same. 2. Marriage is admitted. Divorce is also admitted. That the child was born during the currency of the marriage is also not disputed. Before the Family Court, the petitioner remained exparte. The learned Judge, on the basis of the materials available, proceeded to issue a direction under Section 125 Cr.P.C directing payment of an amount of Rs.1,200/- to the claimant/child of the petitioner. The petitioner did not pay the amount. Steps were taken to execute the exparte order. The petitioner was sent to prison for failure to pay the amount. It is long later that the petitioner went before the Family Court with a petition to set aside the exparte order along with the petition to condone the delay in filing the same. 3. The said application was stoutly opposed. The learned Judge of the Family Court, however evidently took the view that R.P.F.(C).No.489 of 2007 2 the delay can be condoned and the exparte order can be set aside on condition that the petitioner i) deposits the entire arrears due under the impugned order and ii) He pays/deposits an amount of Rs.5,000/- as cost. 4. The petitioner did not make the payment as directed. It is thereafter consequent to non payment of the said amount, the learned Judge proceeded to pass the impugned order dismissing both the petitions. 5. The petitioner claims to be aggrieved by the impugned order. The learned counsel for the petitioner submits that the petitioner wants to raise a contention that the petitioner is not the father of the claimant. The petitioner has been denied crucial opportunity to raise and substantiate his contention. The petitioner may be given an indulgent further opportunity. The terms imposed by the court below are onerous and harsh. The petitioner is unable to comply with the same. In these circumstances, the terms imposed may be modified and the petitioner may be given reasonable further time to comply with the terms. This in short is the contention raised. 6. The respondent has entered appearance before court. The learned counsel for the respondent stoutly opposes the R.P.F.(C).No.489 of 2007 3 application. The learned counsel for the respondent submits that there is absolutely no bona fides in this revision petition. The counsel first of all submits that the plea that the petitioner wants to dispute the paternity of the child is raised for the very first time in this revision petition. Such a plea was never raised at any earlier point of time. Even in the application to set aside the exparte order such a plea is significantly absent, points out the learned counsel. If as a matter of fact the petitioner wanted to dispute paternity of the child born during the currency of the marriage, he can certainly be expected to raise that contention in the application to set aside the exparte order. That having not been done, the want of bonafides in the prayer is eloquent. The said contention may not weigh with the Court at all, submits the learned counsel for the respondent. 7. It is further pointed out before me that an amount of Rs.16,000/- has already been recovered by coercive proceedings initiated against the petitioner. As per order dated 28.11.07, when this revision petition was filed, there is a direction to pay a further amount of Rs.5,000/- within a period of one month. Such amount has not been paid even now, submits the learned counsel for the petitioner. R.P.F.(C).No.489 of 2007 4 8. Having considered all the relevant inputs, I am satisfied that the impugned order does not suffer from any vice which can justify or warrant the invocation of the revisional jurisdiction of superintendence and correction. It is evident as contended by the learned counsel for the respondent/claimant that the petitioner is not really interested in contesting the claim. He is only playing for time to avoid the execution of the impugned order. 9. This revision petition is, in these circumstances, dismissed. I find merit in the contention of the learned counsel for the respondent that no satisfactory reasons have at all been shown to justify the prayer for condonation of a long delay of 243 days in filing the petition to set aside an exparte order which admittedly the petitioner was served. He had information through his mother about the proceedings pending before the Family Court. The petition to set aside the exparte order has been filed long after steps for execution were taken to the knowledge of the petitioner. (R.BASANT, JUDGE) rtr/- R.P.F.(C).No.489 of 2007 5