IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 RPFC.No. 323 of 2009() ---------------------- MC.715/2007 of Family Court, Malappuram .................... REVISION PETITIONER/RESPONDENT: -------------------------------------------------- ABOOBACKER, S/O.MOHAMMED MOLLA, KORMATH HOUSE, KADAMBODE P.O., PANTHALLUR, MALAPPURAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92) RESPONDENT/PETITIONER & STATE: --------------------------------- 1. SOUDHA, D/O.MUHAMMED, VADAKKETHODI HOUSE, MUTHUVATHPARAMBE, HAJIYARPALLI P.O., MALAPPURAM DISTRICT. 2. MUHAMMED AKBAR, D/O.SOUDHA (MINOR), REPRESENTED BY MOTHER GUARDIAN, IST RESPONDENT. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.ANILKUMAR.K.N.PILLAI FOR R1 & 2 PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 25/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.P.F.C.No.323 of 2009 --------------------------------------- Dated this 25th day of August 2009 ORDER Heard counsel on both sides. 2. This revision is in challenge of order dated 24-12-2007 in M.C.No.715 of 2007 of the Family Court, Malappuram. Respondents filed a petition claiming maintenance from petitioner alleging negligence and refusal to maintain them. Learned Judge ordered petitioner to pay interim maintenance to respondent No.2. Petitioner did not pay the amount according to him since he was not able to raise necessary fund while according to the respondents it was willful non payment. Learned Judge on 24-12-2007 after hearing both sides set petitioner ex parte for the reason that he did not pay interim maintenance and acting upon the affidavit of respondent No.1, directed petitioner to pay maintenance at the rate of Rs.2000/- per month and pay to respondent No.2 Rs.600 per month. That order is under challenge in this revision. 2. It is true that for non compliance of an order or other direction the court has the power to strike off the defence. Authorities on the point say that it is only when there is willful default on the part of a party that such drastic steps are taken. The power is to be used sparingly and with circumspection. On the facts and circumstances of this case, I am inclined to think that there was no willful default on the R.P.F.C.No.323 of 2009 2 part of petitioner in not paying the interim maintenance. At the same time, the plight of the respondents are also looked into. Learned counsel for respondents appointed by the Legal Services Authority states that respondents are penni less and they are not even able to engage a lawyer. If the order under challenge is set aside respondents have to fight the case again in the court below. Petitioner has not paid the maintenance and as per the submission of learned counsel for respondents the amount payable is around Rs.60000/-. In the circumstances, I am inclined to allow the revision petition on terms to give petitioner an opportunity to contest the case. Resultantly, this revision petition is allowed and the order under challenge is set aside on condition that petitioner deposited in the trial court for payment to the respondents Rs.30000/- (Rupees Thirty Thousand Only) within one month from this day. It is directed though not as a condition for setting aside the impugned order that petitioner shall deposit/pay in the trial court interim maintenance at the rate of Rs.1000/- to respondent No.1 and Rs.500/- to respondent No.2, per month, from 24-12-2007 onwards and until disposal of the petition by the court below. On petitioner depositing the aforesaid sum of Rs.30000/- within one month the revision petition will stand allowed and the order under challenge set aside. Thereon, court below shall give petitioner an opportunity to file his counter. Both sides shall be R.P.F.C.No.323 of 2009 3 given opportunity to adduce evidence in respect of respective contentions. Execution of warrant if any against the petitioner will stand in abeyance for a period of one month from this day or, till petitioner deposited the sum of Rs.30000/- in the trial court whichever is earlier and consequently the order under challenge is set aside. In case the deposit of Rs.30000/- is not made within the time above stated, this revision petition will stand dismissed. THOMAS P JOSEPH, JUDGE Sbna/