IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 RPFC.No. 373 of 2010() -------------------------------- CMP. NO.215/2010 IN MC.237/2009 of THE FAMILY COURT,KOZHIKODE. .................... REVISION PETITIONER/ RESPONDENT --------------------------------------------------------- MUHAMMED SHAHEER S/O.MOOSAKKOYA AGED 38 YEARS,"KUTTIKKATTU PARAMBA" PAYYANAKKAL P.O.,KALLAI, CALICUT-673003. BY ADVS. SRI.R.SUDHISH SRI.P.B.SAJITH SMT.M.MANJU RESPONDENT(S): PETITIONER --------------------------------------------- SAIRABANU,D/O.MOIDEEN KOYA AGED 31 YEARS,"P.K.HOUSE"POYIL PADAM, ODUMBRAKADAVU,THIRUVANNUR P.O., CALICUT-673029 THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 01/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------- R.P.(F.C.) No.373 of 2010 ------------------------------- Dated this the 1st day of November, 2010. O R D E R The respondent/husband in a proceedings u/s.125 of Cr.P.C. is the revision petitioner, as he is aggrieved by the orders of the Family Court, Kozhikode, by which the learned Judge dismissed, his belated application to set aside the exparte order passed in the said proceedings. 2. I have heard Adv.Sri.R.Sudhish, the learned counsel appearing for the revision petitioner and I have perused the orders of the Family Court, Kozhikode. 3. The respondent herein had preferred M.C.No.237/09 u/s.125 of Cr.P.C. claiming maintenance @ Rs.3,000/- per month from the revision petitioner. The learned Family Court Judge setting exparte the respondent, allowed the claim for maintenance and the respondent/revision petitioner herein is directed to pay a sum of Rs.1,250/- to the claimant as monthly maintenance from 30.7.2009 ie., the date of the petition. 2 R.P.(F.C.) No.373 of 2010 4. Challenging the above order, the revision petitioner approached the Family Court itself by filing a petition in C.M.P.No.216/10 in M.C.No.237/09 to set aside the exparte order and as there was a delay, the said petition was filed along with a petition in C.M.P.No.215/10 to condone the delay, that occurred in filing the petition to set aside the exparte. The learned counsel for the revision petitioner submitted that, the learned Judge of the Family Court, on a technical ground rather than on a flimsy ground, dismissed the petition to condone the delay, stating that the number of days to be condoned is not mentioned in the petition. It is also stated that the delay has not properly explained. Consequent to the order dated 23.4.2010 in C.M.P.No.215/10, the learned Judge of the Family Court has also dismissed C.M.P.No.216/10, to set aside the exparte order. It is the above orders challenged in this revision petition. 5. Going by the order dated 26.11.2009 in M.C.No.237/09 it can be seen that the said order is an exparte order and even no evidence is adduced either by the claimant or by the respondent and the Family Court simply fixed the amount based 3 R.P.(F.C.) No.373 of 2010 upon the claim of the claimant. It is under the above circumstances the revision petitioner approached the trial court to set aside the exparte order. It is stated that along with petition to condone the delay, the petitioner has also produced Annexure A and B documents. Thus according to him, he could not approach the court below in time because of his ailment. It was the same reason, he sought to be explained before the Family Court for his non-appearance in the main matter. It may be true that no details are given in the petition to condone the delay. Though the affidavit is sworn in by the revision petitioner, the same was prepared by the counsel appearing for the revision petitioner in the court below and an omission on the part of the revision petitioner in mentioning the number of days to be condoned can not be a good ground to reject the petition to condone the delay, especially in a Family Court matter and that too when the datas born out from the records does not justify such approach. 6. It is pertinent to note that from the order sought to be impugned it can be seen that though the copy of the order was 4 R.P.(F.C.) No.373 of 2010 ready on 13.1.2010, it was issued only on 6.2.2010 and the petition to set aside the exparte order was filed on 23.2.2010 and the above materials are inbuilt in the order of the Family Court itself and hence there is no meaning in rejecting the prayer to condone the delay, as the days are not mentioned. Under the above factual background, especially when the order is passed without recording any evidence, I am of the view that it is only just and proper to grant an opportunity to the revision petitioner to challenge the exparte order before the same court. 7. It is also relevant to note that though the petition for maintenance was filed on 30.7.2009 and as per the order dated 26.11.2009, though the revision petitioner was directed to pay a maintenance @ Rs.1,250/- per month, so far no amount is seen paid to the claimant. Therefore while setting aside the orders impugned, I am of the view that the revision petitioner can be directed to pay some amount towards the maintenance already fixed by the Family Court and permitting the claimant to withdraw such amount. In the result, this revision petition is disposed of setting 5 R.P.(F.C.) No.373 of 2010 aside the order dated 23.4.2010 in C.M.P.No.215/10 and C.M.P.No.216/10 in M.C.No.237/09 of the Family Court, Kozhikode, on condition the revision petitioner deposits half of the total arrears of the maintenance ordered by the Family Court, within one month from today, in the Family Court and on depositing the said amount within the period indicated above, the Family Court is directed to restore C.M.P.No.216/10 in M.C.no.237/09 and dispose the same on merit in accordance with the procedure and law. It is made clear that on deposit of the above amount, the claimant/wife is entitled to withdraw the same and the Family Court is directed to dispose the petition to set aside the exparte order untrammelled by any of the observations or findings that contained in this order, including the provision to deposit half of the amount towards the arrears. V.K.MOHANAN, Judge. ami/