IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 22ND DAY OF DECEMBER 2011/1ST POUSHA 1933 OPFC.No. 1733 of 2011 ® ---------------------------------- I.A.NO.2637/2009 IN THE CONTEST OF I.A.NO.3344/2008 IN OP.378/2008 of FAMILY COURT, KOTTAYAM AT ETTUMANNUR. ............... PETITIONER(S)/PETITIONER SANTHOSH KUMAR, AGED 41 YEARS, S/O.KUMARAN, PULICKAL HOUSE, PATTIMATTOM P.O., KUNNATHUNADU, ERNAKULAM. BY ADV.SRI.VARGHESE C.KURIAKOSE RESPONDENT(S) 1. SHIJIMOL,D/O.RAJAPPAN, PUNCHAL HOUSE, MARANGATTUPALLY P.O. KURICHITHANAM VILLAGE, MEENACHIL TALUK, PIN-686 635. 2. AJISH, S/O.BETTY, MUTHOOT BANKERS, PALA, KOTTAYAM, PIN-868 575. R1 BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA SMT.T.M.BINITHA SMT.AFSANA ASHRAF THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22-12-2011 , ALONG WITH OPFC. 1738/2011 & ZRPFC.1345/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VPV OPFCNO.1733/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PHOTOSTAT COPY OF THE PETITION IN O.P.NO.378/2007 ON THE FILES OF FAMILY COURT, ERNAKULAM DATED 09.11.2007. EXT.P2: PHOTOSTAT COPY OF THE COMMON ORDER DATED 13.03.2008 ORDERED TRANSFER OF O.P.NO.1475/2007 ON THE FILES OF FAMILY COURT, ERNAKULAM TO THE FILES OF FAMILY COURT, KOTTAYAM. EXT.P3: PHOTOSTAT COPY OF THE I.A.NO.3344/2008 SEEKING TO RESTORE THE O.P.NO.378/2008 ON THE FILES OF THE HON'BLE FAMILY COURT, KOTTAYAM AT ETTUMANNUR. EXT.P4: PHOTOSTAT COPY OF THE ORDER PASSED ON 28.02.2009 IN I.A.NO. 3344/2008 ON THE FILES OF FAMILY COURT, KOTTAYAM AT ETTUMANNUR. EXT.P5: PHOTOSTAT COPY OF I.A.NO.2637/2009 IN O.P.NO.378/2008 ON THE FILES OF THE HON'BLE FAMILY COURT, KOTTAYAM AT ETTUMANNUR. EXT.P6: PHOTOSTAT COPY OF THE ORDER IN I.A.NO.2637/2009 IN O.P.NO.378/2008 & O.P.NO.1087/2007 ON THE FILES OF THE HON'BLE FAMILY COURT, KOTTAYAM AT ETTUMANNUR DATED 24.12.2009. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE VPV THOTTATHIL B.RADHAKRISHNAN & C.T. RAVIKUMAR, JJ. ------------------------------------------------ O.P.(FC) No. 1733, 1738 of 2011 & Unnumbered O.P.(FC)/2011 ------------------------------------------------ Dated this the 22nd December, 2011 J U D G M E N T Thottathil B.Radhakrishnan,J: 1. The petitioner in these matters is the husband of the first respondent therein. They have a child. 2.The matrimonial tie is intact. The wife sued for return of money and gold allegedly entrusted with the husband and his family following the marriage. That was decreed ex parte. The husband applied to have the ex parte decree set aside. That was allowed imposing Rs.1000/- as costs. That order of costs was not complied with. After 1½ years, the husband applied for enlargement of time fixed to pay costs. The court below dismissed that application. That has led to O.P.(FC)No. 1733/11. 3. In the meanwhile, the ex parte decree was put in execution. That leads to O.P.(FC) 1738/11. O.P.(FC)Nos.1733 & 1738/11 & Unnumbered OP(FC)] 2 4. The unnumbered R.P.(FC) is filed by the husband challenging the order for maintenance granted to the wife and the child in exercise of authority under Section 125 Cr.P.C. 5. Hearing all the relevant aspects of the matter, we see that the ends of justice requires that the parties get an opportunity to contest the matter on merit as far as the case relating to money and valuables are concerned. In fact, the trial court has set aside the ex parte decree on costs. The husband-respondent did not pay the costs. The cost fixed was Rs.1000/-. He applied for enlargement of time after 1½ years. Now, 1½ years have obviously gone through even thereafter. Taking all relevant facts and circumstances, we think that ends of justice would be met if O.P.(FC) 1733/11 is allowed imposing an amount of Rs.25,000/- as costs. This means that ex parte decree would stand set aside in terms of the earlier order of the court below if the petitioner before us pays to first respondent an amount of Rs.25,000/- within a period of one month from now. O.P.(FC)Nos.1733 & 1738/11 & Unnumbered OP(FC)] 3 6. The application for divorce filed by husband was also dismissed for default and the application for restoration also met with the fate identical to what noted above. Therefore, we allow O.P.(FC) 1738/11 on condition that petitioner-husband pays to first respondent an amount of Rs.10,000/- as costs and satisfies the entire order in M.C.304/07 within a period of 45 days. 7. Unnumbered RP(FC)/2011 with an application for condonation of delay of 692 days is filed against the order for maintenance. Having gone through the matter, we do not find any material to find any ground to exercise our revisional jurisdiction. The paternity is not in dispute. The marital status is not in dispute. His only plea is that wife is having adulterous conduct. That is a matter yet to be investigated in the application for divorce. On the totality of the facts and circumstances, we hold that the order impugned does not call for interference. We are also satisfied that sufficient cause has not been showed for condonation of delay. Crl.M.A.No.1345/11 is dismissed. Unnumbered RP(FC) stands rejected. O.P.(FC)Nos.1733 & 1738/11 & Unnumbered OP(FC)] 4 8. We also clarify that in the event of husband succeeding in the application for divorce or if there is any change of circumstance, he would be entitled to seek further modification of the order for maintenance in M.C. 304 of 2007. Ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- C.T. RAVIKUMAR, Judge. krs.