IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 WP(C).No. 19587 of 2008(S) -------------------------------------- AGAINST THE ORDER IN IA.1991/2007 IN OP.506/2007 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): ---------------------- RADHAKRISHNAN, S/O.PUVVATTU PUVVATHUM PARAMBIL KUNHILAKSHMI AMMA, FAROKE AMSOM, NELLUR DESOM, P.O.NALLUR, KOZHIKODE TALUK. BY ADV. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON RESPONDENT(S): ------------------------- NISHA, D/O.THEKKUMCHERI AMBUJAKSHI AMMA, ARIYALLUR AMSOM KODAKKAD DESOM, P.O. KODAKKAD, TIRURANGADI TALUK. BY ADV.SMT.SUMATHI DANDAPANI (SENIOR) SRI.MILLU DANDAPANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2010 ALONG WITH WPC NO. 20547 OF 2008 THE COURT ON THE SAME DAY FOLLOWING: WP(C).No. 19587 of 2008(S) APPENDIX: PETITIONER'S EXHIBITS: EXT.P1--TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF I.A.NO.1991/2007 EXT.P2--TRUE COPY OF THE ORDER DATED 9.1.2008 IN I.A.NO.1991/2007. K.M.JOSEPH & P.Q.BARKATH ALI, JJ. ------------------------------------------------------ W.P.(C) No.19587 of 2008-S & W.P.(C) No.20547 of 2008-S ---------------------------------------------- Dated, this the 8th day of January, 2010 J U D G M E N T K.M.Joseph, J. Since the parties to the writ petitions are the same, we are disposing of the writ petitions by this common judgment. W.P.(C) No.19587 of 2008 2. This writ petition is filed by the petitioner/husband against the respondent/wife challenging Ext.P2. The petitioner had filed Original Petition seeking partition. On account of the default on the part of the petitioner to appear the said petition came to be dismissed for default. Thereupon, the petitioner filed petition to restore the petition dismissed for default. That petition stands allowed by Ext.P2. The Family Court, Malappuram has allowed the application on condition that the petitioner deposits Rs.5,000/- as cost. W.P.(C) No.19587 of 2008-S & W.P.(C) No.20547 of 2008-S -2- W.P.(C) No.20547 of 2008 3. This writ petition is filed to set aside Ext.P2 and to allow I.A.No.1990/2007 in O.P.No.210/2007 on the file of the Family Court, Malappuram and to restore the matter to the file. 4. In this case the respondent and the minor children had filed O.P.210/2007 seeking past maintenance under Section 7 (1) (f) of the Family Court Act. On 24th August, 2007 the petitioner herein was set exparte. Acting on the affidavit filed by the respondent and the minor children, the Court allowed the Original Petition directing the respondent to pay past maintenance of Rs.1,05,000/- with interest at the rate of 6% from the date of the order till realisation with costs. Thereupon, the petitioner filed application to set aside the exparte order. The said application has been allowed on condition that the petitioner will deposit the entire arrears of past maintenance ordered to his two minor children and half of the arrears of maintenance ordered to his wife both on or before 11.30 a.m. on 29.1.2008. W.P.(C) No.19587 of 2008-S & W.P.(C) No.20547 of 2008-S -3- 5. We heard Sri.Harish R.Menon, learned counsel for the petitioner and Smt.Sumathi Dandapani, learned senior counsel for the respondent. Learned counsel for the petitioner submits that the petitioner could not appear on account of an untoward incident and he would submit that the imposition of cost of Rs.5,000/- and also imposition of the condition to pay the full maintenance to the minors and half of the maintenance ordered to the wife cannot be supported. Per contra, learned senior counsel for the respondent supports the order. 6. Learned senior counsel for the respondent would submit that in case the Court interferes she does not have any objection in enuring the benefit of the order to the minor children also. 7. We agree with the Family Court that the petitioner should be given an opportunity. We also agree that it cannot be an unconditional order. But, we feel that the imposition of cost of Rs.5,000/- in a matter of this nature may not be justified. We reduce the cost of Rs.5,000/- ordered in Ext.P2 in W.P.(C) No.19587/2008 to Rs.3,000/- W.P.(C) No.19587 of 2008-S & W.P.(C) No.20547 of 2008-S -4- (Rupees three thousand only). Accordingly, we modify Ext.P2 and direct that I.A.No.1991/2007 in O.P.No.506/2007 will stand allowed upon the petitioner paying Rs.3,000/- (Rupees three thousand only) to the respondent which is to be paid within a period of three weeks from today. 8. W.P.(C) No.20547/2008 relates to past maintenance. As per order of this Court petitioner has deposited Rs.25,000/- and it is also common case that the said amount has been withdrawn by the respondent. Having regard to the facts of the case we feel that an opportunity on less onerous terms than imposed by the Family Court can be given. In such circumstances, we interfere with Ext.P2 and order as follows:- I.A.No.1990/2007 in O.P.No.210/2007 on the file of the Family Court, Malappuram shall stand allowed on condition that a further sum of Rs.20,000/- (Rupees twenty thousand only) will be deposited by the petitioner in the Family Court, within a period of one month's time from today. Upon deposit, it will be open to the petitioners 2 and 3 in O.P.No.210/2007 to withdraw the same. If the petitioner W.P.(C) No.19587 of 2008-S & W.P.(C) No.20547 of 2008-S -5- deposits Rs.20,000/- as aforesaid, the Family Court, Malappuram will take up O.P.No.210/2007 and take a decision on the same within a period of four months from the date on which the payment of Rs.20,000/- is notified to it by the parties. We further make it clear that the amount which has been deposited by the petitioner, namely, Rs.25,000/- and the amount to be deposited by the petitioner (Rs.20,000/-) will be taken into consideration by the Family Court when it considers the question of the amounts to be paid in case the Family Court finds that the petitioner is liable to pay any amount towards maintenance. (K.M.JOSEPH) JUDGE. (P.Q.BARKATH ALI) JUDGE. MS