IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 RPFC.No. 68 of 2007(E) ---------------------- MC.29/2006 of FAMILY COURT, THIRUVALLA .................... : REVISION PETITIONER: ------------------------------------- THULASEEDHARAN PILLAI, S/O.GOPALA PILLAI, THULASEE BHAVAN, KADAMBANADU NORTHMURI, KADAMBANADU VILLAGE, ADOOR TALUK. BY ADV. SRI.S.SUBHASH CHAND SMT.M.P.MARY RESPONDENTS: ------------- 1. L. OMANAYAMMA, D/O.GOPALAKRISHNA PILLAI KANDANAZHIKATHU VEEDU, MAILAMKULAM MURI, PUTHOOR VILLAGE, KOTTARAKKARA TALUK. 2. SANDHYA (MINOR) KANDANAZHIKATHU VEEDU, MAILAMKULAM MURI, PUTHOOR VILLAGE, KOTTARAKKARA TALUK, REPRESENTED BY HER MOTHER THE 1ST RESPONDENT. 3. DIVYA (MINOR) KANDANAZHIKATHU VEEDU, MAILAMKULAM MURI, PUTHOOR VILLAGE, KOTTARAKKARA TALUK, REPRESENTED BY HER MOTHER, THE 1ST6 RESPONDENT. 4. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ R.P.F.C No.68 of 2007 ------------------------------------- Dated this the 29th day of May, 2008 ORDER Petitioner in this Revision Petition challenges a direction issued to him to pay maintenance to the claimants - his wife and 2 children. The short grievance of the petitioner is that the petitioner was not permitted to contest the proceedings. The relevant portion of the impugned order in para.3 reads as follows: “Counter petitioner on service of notice appeared but he did not pay the interim maintenance ordered and that he is not allowed to contest.” 2. The learned counsel for the petitioner submits that the procedure adopted by the learned Judge of the Family Court is grievously erroneous. Non payment of maintenance cannot entail loss of his right to contest the proceedings under Section 125 Cr.P.C. The position has been well settled in Davis v. Thomas [2007 (3) KLJ 553]. I find merit in the contention raised by the learned counsel for the petitioner. The respondents, though served, have not entered appearance before me. I am satisfied that following the dictum in Davis v. Thomas the petitioner is entitled to get the impugned order set aside. The learned counsel for the petitioner submits that paternity is not disputed, but serious contentions have to be raised about the quantum of R.P.F.C No.68 of 2007 2 maintenance which is liable to be paid as also the entitlement of the wife for maintenance. I am satisfied that the court below must be directed to dispose of the matter afresh after giving the petitioner an opportunity to raise and substantiate all his contentions. 3. In the result: i) This R.P.F.C is allowed; ii) The impugned order is set aside; iii) The learned Judge of the Family Court is directed to dispose of M.C.No.29 of 2006 afresh. 4. The learned Judge shall dispose of the case as expeditiously as possible - at any rate, within a period of 3 months from the date on which a copy of this order is placed before the learned Judge. The order granting interim maintenance has not been challenged and the said order, needless to say, shall continue to remain in force till the disposal of M.C.No.29 of 2006. Amounts, if any, deposited as per interim orders passed in this R.P.F.C, shall forthwith be released to the claimants without prejudice to the contentions of the rival contestants. (R.BASANT, JUDGE) rtr/-