IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 125 of 2009()
1. GOPALAN, S/O. KUNCHI,
... Petitioner
Vs
1. ANITHA, D/O. KORU,
... Respondent
2. GOKUL, AGED 12 YEARS (MINOR)
3. GOPIKA, AGED 9 YEARS (MINOR)
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent :SRI.MANSOOR.B.H.
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :28/05/2009
O R D E R
THOMAS P. JOSEPH, J.
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R.P.(FC) No.125 of 2009
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Dated this the 28th day of May, 2009.
ORDER
Respondents though served remain absent.
2. Challenge in this revision is to the refusal to set aside an exparte
order in favour of the respondents under Section 127 of the Code of Criminal
Procedure(for short, “the Code”). It is not disputed that respondent No.1 is the
wife and respondent Nos.2 and 3 are minor children of the petitioner. Application
preferred by the respondents for maintenance under Section 125 of the Code
was initially settled in the adalath and petitioner was directed to pay maintenance
allowance to them at the rate of Rs.350/- per month to respondent No.1 and
Rs.300/- each per month to respondent Nos.2 and 3. Later on the application of
respondents monthly allowance was enhanced to Rs.500/- per month to
respondent No.1 and Rs.400/- each per month to respondent Nos.2 and 3 with
effect from 28.7.2003. After five years, respondents preferred the present
application for enhancement of maintenance allowance. On that application,
petitioner concededly remained absent. Court below enhanced maintenance
allowance payable to the respondents to Rs.800/- per month to respondent No.1
and Rs.700/- each per month to respondent Nos.2 and 3. Ninety days after the
prescribed time to apply to set aside the exparte order, petitioner filed
C.M.P.Nos. 12 of 2009 and 28 of 2009 to set aside the exparte order and to
RP(FC) No.125/2009
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condone the delay in filing the petition to set aside the exparte order. Learned
Judge was not impressed by the reasons stated in the affidavit for the delay,
found that reasons stated are false and consequently dismissed the petition.
Hence this revision. Learned counsel contends that delay has been properly
explained and that the petitioner ought to have been given an opportunity to
contest the petition.
3. It is admitted that petitioner was served with notice in a petition to
enforce the order, to appear in the Family Court on 20.5.2008 at 2.30 p.m.
Petitioner was served with the notice on the application for enhancement of
maintenance allowance also to appear in the same court on 20.5.2008. His
version is that on a petition filed for enforcement of the order he was summoned
to appear in the court on the same day at 2.30 p.m. and he thought that
petition for enhancement of maintenance allowance will also be called only at
that time, he had been in the court for that time but the petition for
enhancement of maintenance allowance was not taken up. Court below
observed that this contention cannot be sustained since in the notice issued to
the petitioner on the application for enhancement it was specifically stated that
he shall appear in court on 20.5.2008 at 11 a.m. and hence, the petitioner could
not have been misled by the time fixed for appearance. I find no reason to
discard that view of the court below.
4. Assuming that petitioner was under a bona fide impression that
petition for enhancement would be taken up at 2.30 p.m. on 20.5.2008 one is
persuaded to think why inspite of the petition for enhancement not being taken
RP(FC) No.125/2009
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up at 2.30 p.m., petitioner did not make any enquiry about that. It is interesting
to note that he learnt about the exparte order on the application for
enhancement of maintenance only after the expiry of ninety days when he
received a notice on another petition for enforcement. At any rate it is certain
that until such period petitioner had made no enquiry as to the fate of the
petition filed against him for enhancement of maintenance allowance in which
notice for appearance had already been served on him. It is pertinent to note
that enhancement allowed by the family court is only at the rate of Rs.300/-
each to respondent Nos.1 to 3, per month. At that time respondent No.1 was
aged 37 years and respondent Nos.2 and 3 were aged 12 and 9 years
respectively. I am also to look into the possible contention petitioner could take
up assuming that he is given an opportunity to contest the petition for
enhancement. The cost of living has increased by five years. Certainly the
income of the petitioner also would have increased by this time. In these
circumstances I am not inclined to interfere with the discretion exercised by the
court below in not condoning the delay.
This petition therefore fails. It is dismissed.
Crl.M.A.No.3416 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks