IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 494 of 2007()
1. ISMAIL, S/O. MAMMAD HAJI,
... Petitioner
Vs
1. FOUSIYA, D/O. ABDULLA KUTTY,
... Respondent
2. NISA MUHAMMED, (MINOR), S/O. FOUSIYA,
3. AFIFA (MINOR), D/O. FOUSIYA,
For Petitioner :SRI.SMT.R.BINDU SASTHMANGALAM
For Respondent :SRI.K.M.FIROZ
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :09/03/2010
O R D E R
M.N.KRISHNAN,J.
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R.P(FC).No. 494 OF 2007
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Dated this the 9th day of March 2010.
O R D E R
This revision is preferred against the order of the
Family Court, Kozhikode in C.M.P.No. 925/2006 and
C.M.P.No. 926/2006. Those applications are filed to set aside
the ex-parte order and condone the delay of 657 days in
filing the petition to set aside the ex-parte order. According
to the husband he was working a hotel in Karnataka and
the summons was received by the mother. There was no
intimation
and that resulted in an ex-parte order. It is to be
remembered then that when substantial justice is pitted
most technicality, substantial justice should prevail and
principles of justice demand a fair hearing before a matter
is disposed of. Therefore applying that larger theory
coupled with the fact that there has been no contumacious
act or gross negligence I am inclined to grant an
R.P(FC).No. 494 OF 2007 2
opportunity. It is seen from the back drop of the case that
the husband is only claiming to be a waiter in a hotel. If,
it is true and genuine certainly the amount awarded may be
excessive. The purpose of Section 125 Cr.P.C. is not to
award an unreasonable amount and put him in jail which will
result finally in working out injustice to the party. At the
same time it has to be remembered that destitution has to
be prevented and balance has to be struck between
necessity and income and reasonable amount has to be
awarded. Therefore I feel an opportunity can be given. I
make it clear that I am not expressing anything on the
merits of the case regarding the amount to be fixed and I
leave it wide open. But the person who had caused such a
delay and walked away comfortably has to pay interim
maintenance at the rate of Rs.1,000/- to the wife and
Rs.750/- to the children till a final decision is taken in the
matter. It is also made it clear that if there is a default of
two consecutive instalments, the Family Court has the
opportunity to strike out the defence and proceed in
R.P(FC).No. 494 OF 2007 3
accordance with law. This amount is to be paid from the
date of filing of this revision before this Court. Let there be
an expeditious disposal. If the amount of Rs.40,000/-
deposited is not withdrawn the wife and children are at
liberty to withdraw the same.
M.N.KRISHNAN,JUDGE.
mns