IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 RPFC.No. 517 of 2007() ---------------------- AGAINST THE ORDER DATED 06/01/2007 IN CMP.1755/2004 IN MC.370/2000 of FAMILY COURT, KOZHIKODE .................... REVISION PETITIONER/RESPONDENT ----------------------------------------------- MEENATH MEETHAL MAJEED, S/O.KUNHAMU, PUTHUR AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT REP.BY NEXT FRIEND AND BROTHER, MEENATH MEETHAL MOHAMMED, S/O.KUNHAMU,AGED 52, THOUFEER MANZIL, PUTHUR P.O., VATAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS: PETITIONERS ------------------------ 1. M.SAREENA, D/O.KUNHAMMED, MANAPPURAM VAYALIL HOUSE, IRINGAL AMSOM, MOORAD DESOM, KOYILANDY TALUK, KOZHIKODE. 2. FARSANA (MINOR). 3. FARSATH (MINOR). 2ND AND 3RD RESPONDENTS ARE REP.BY THEIR MOTHER, THE 1ST RESPONDENT. BY ADV. SRI.P.K.RAMKUMAR THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 7.2.08, THE COURT ON 07/02/2008 PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` R.P.F.C. No. 517 OF 2007 ```````````````````````````````````````````````````` Dated this the 7th day of February, 2008 O R D E R The petitioner in this revision petition challenges an order passed by the Family Court, Kozhikode under section 127 Cr.P.C. The claimants - wife and two children of the petitioner, had earlier obtained an order under section 125 Cr.P.C. directing the petitioner to pay an amount of Rs.500/-, Rs.250/- and Rs.250/- respectively to the three claimants. That order was passed in M.C.370/2000. Later, in 2004, the claimants came before the Family Court and prayed that the quantum of maintenance fixed may be enhanced to Rs.2,000/- per month. The learned Judge of the Family Court by the impugned order directed that enhancement be granted to all the three claimants to Rs.2,000/- per month. It is this order which is assailed before me. The petitioner was set ex- parte before the court below. R.P.F.C.No.517/07 : 2 : 2. The learned counsel for the petitioner submits that the petitioner is now undergoing imprisonment for default in payment of the amounts due. Notwithstanding an order of stay granted by this Court, the petitioner is still continuing in custody, it is submitted. There are indications to suggest that the petitioner has some mental ailment and requires treatment. That is revealed from a report which was called for by another Bench of this Court earlier as per order dated 17.12.07. 3. The learned counsel for the petitioner submits that in any view of the matter, the impugned order is not justified at all in as much as there is total want of application of mind to the issue involved. The learned Judge of the Family Court has not considered the materials available and has not applied his mind at all to the question as to whether enhancement can be granted as prayed for or not. Even when the petitioner was set ex-parte, as the claim was for enhancement, the learned Judge must have considered the R.P.F.C.No.517/07 : 3 : materials and applied his mind to the issues involved. That having not been done, the impugned order be set aside and petitioner may be given an opportunity to contest the proceedings, it is submitted. 4. I find merit in the submission of the learned counsel for the petitioner. A perusal of the order shows that the learned Judge has not really applied his mind to the materials available or about the justifiability of the relief claimed. I do also note that some semblance of material is none available to suggest that the petitioner has at present some mental ailment/illness. I am satisfied that the interests of justice will be served eminently by setting aside the impugned order and directing the learned Judge of the Family Court to consider the matter afresh and pass appropriate orders. In as much as I am setting aside the order and sending the matter back to the Family Court, I am satisfied that there can be a direction that the petitioner be given an opportunity to raise and R.P.F.C.No.517/07 : 4 : substantiate his contentions. This is so directed notwithstanding the fact that the petitioner has been set ex- parte and no application to set aside the ex-parte order has been filed by the petitioner before the learned Judge of the Family Court so far. 5. In the result, this revision petition is allowed in part. The impugned order is set aside. The learned Judge of the Family Court is directed to dispose of the matter afresh after giving the petitioner an opportunity to raise and substantiate his contentions against the enhancement of maintenance claimed. (R.BASANT, JUDGE) aks