IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2450 of 2009(S)
1. M.V.UNNIKRISHNAN, S/O.GOPALAN, MEETHALA
... Petitioner
Vs
1. K.P.SHEEJA, D/O.SREENIVASAN, KAKKADATH P
... Respondent
2. SAYOOJ(MINOR), 7 YEARS, REP. BY 1ST
3. TAHSILDAR, KANNUR.
For Petitioner :SRI.T.RAJASEKHARAN NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :02/02/2009
O R D E R
P.R.RAMAN & C.T.RAVIKUMAR, JJ.
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W.P.(C) No.2450 of 2009
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Dated this the 2nd February, 2009
J U D G M E N T
Raman, J.
This writ petition is filed challenging Exts.P5 and P6
orders. Ext.P5 is an order enhancing the maintenance to
Rs.3000/= per month, in an application filed by the wife under
Section 127 of Code of Criminal Procedure, after declaring the
petitioner ex parte. Subsequently, the petitioner preferred an
application to set aside the ex-parte order. But then also, neither
the petitioner nor his counsel appeared, and, therefore, that
petition was also dismissed for default, as evidenced by Ext.P6
order. The petitioner thereafter did not seek to review or to set
aside that order, and thus Exts.P5 and P6 orders have become
final.
2. Sri.T.Rajasekharan Nair, the learned counsel
appearing on behalf of the petitioner, contended that non-
W.P.(C) No.2450 of 2009
2
appearance of the counsel on the appointed day, when Ext.P6
order was passed, might be due to the fact that he would have
been appearing in some other court. We cannot set aside an
order on presumptions. Good grounds must be shown as
explanation for non-appearance. Nothing prevented the
petitioner or his counsel from filing a petition seeking a review or
to restore the order, and no steps were taken before the court
below in this regard. Even before this Court also, no affidavit or
no reasons are stated to warrant an interference in Ext.P6 order.
We are not in a position to go on to the merits of Ext.P5 order,
because the only evidence was that of the petitioner, the
respondent herein, seeking enhancement of maintenance. The
petitioner also remained absent. In such circumstances, we
cannot find fault with the court below in granting enhanced
maintenance.
3. According to the petitioner, the wife got
remarried and hence she is not entitled to receive any
maintenance. If the remarriage is subsequent to Ext.P5 order,
W.P.(C) No.2450 of 2009
3
necessarily, based on the change of circumstances, the petitioner
can still apply to the Family Court for necessary modifications. In
such circumstances, we dismiss the writ petition. However, this
will not prevent or prejudice the right of the petitioner seeking to
set aside Ext.P6 order or for modification of Ext.P5 order on good
grounds being shown.
P.R.RAMAN, JUDGE
C.T.RAVIKUMAR, JUDGE.
nj.