IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 121 of 2010()
1. K.H.SUDHEER, S/O.HUSSAIN,
... Petitioner
Vs
1. M.A.SHAHEERA, D/O.M.A.ABDU,
... Respondent
2. SUHAINA (MINOR) REP. BY HER MOTHER
For Petitioner :SRI.T.RAJESH
For Respondent :SRI.R.O.MUHAMED SHEMEEM
The Hon'ble MR. Justice V.K.MOHANAN
Dated :21/07/2010
O R D E R
V.K.MOHANAN, J.
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R.P.(F.C.)No.121 of 2010
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Dated this the 21st day of July, 2010.
O R D E R
This revision petition is preferred by the respondent/
husband in M.C.No.251/07 on the file of the Family Court,
Ernakulam, challenging the order dated 12.3.2009 in the above
proceedings, which is instituted upon a petition preferred by the
respondents herein u/s.125 of Cr.P.C.
2. I have heard the learned counsels for the revision
petitioner as well as the contesting respondents.
3. In the impugned order, the Family Court, Ernakulam,
directed the revision petitioner to pay the maintenance @ of
Rs.1,500/- per month to each of the claimants with effect from
17.8.2007. It is the above order challenged in this revision
petition.
4. The learned counsel for the revision petitioner submitted
that, at the time of issuing the impugned order the revision
petitioner was in gulf and as he was employed there and the
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impugned order is issued without proper service and behind his
back and then the same is an exparte order. It is also the
contention of the learned counsel that, in pursuance to the
impugned order, the respondents herein approached the Family
Court for execution of the above order by filing
Crl.M.P.No.239/09 and in pursuance to which arrest warrant is
pending against the revision petitioner.
5. While this court admitted the revision petition on
30.3.2010, issued an interim order staying the operation of the
impugned order on condition the petitioner depositing a sum of
Rs.75,000/- towards the maintenance that is due as per the
impugned order. It is also ordered that the revision petitioner
shall continue to deposit the maintenance @ of Rs.2,200/- per
month. The learned counsel for the revision petitioner submitted
that he had strictly complied with the above order of this court.
6. During the pendency of this revision petition, the
respondents herein preferred Crl.M.A.No.6275/10, seeking
permission of this court to withdraw the entire amount deposited
by the revision petitioner and the said prayer is stoutly opposed
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by the counsel for the revision petitioner.
7. On a perusal of the available records and on hearing of
the counsels for the revision petitioner as well as the
respondents it appears to me that, there is no controvert that the
marriage between the revision petitioner and the 1st claimant was
taken place on 15.2.1998 and the 2nd claimant – the minor
daughter Suhaina, born in that wedlock. It is also beyond
dispute that, when the revision petitioner got visa, he went to
Saudi Arabia during the month of January 2007 and on putting
an end to his service there, he returned to India during the month
of December 2009. Thus for a period of 3 years the revision
petitioner was out of India. It is also beyond dispute that the
impugned order dated 12.3.2009 was issued without hearing the
revision petitioner. However, the fact that the revision petitioner
and the respondent entered into a valid marriage and the marital
relationship is still existing and a child is born in their wedlock,
are not disputed. If that be so, I am of the view that this revision
petition can be disposed of directing the revision petitioner to
approach the Family Court by resorting S.126 of Cr.P.C.
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challenging the exparte order. It is also submitted by both the
counsels that, series of litigations are pending between the
contesting parties. When the marriage is not disputed and the
paternity of the 2nd claimant is also not disputed and especially
when the revision petitioner was out of station for 3 years, I am
of the view that, it is the responsibility and liability of the revision
petitioner to maintain his wife and child during the above period
and therefore the amount ordered by this court and deposited by
the revision petitioner can be allowed to withdraw by the
respondents but subject to certain conditions.
In the result, this revision petition is disposed of relegating
the revision petitioner to approach the Family Court, Ernakulam,
by resorting S.126(2) of Cr.P.C. for setting aside the exparte
order, if he so advised and it is for the Family Court to take
decision upon such a petition on merit, if the revision petitioner
approach the Family Court with such a prayer. In the light of the
facts, reasons and discussions referred above it is ordered that,
the respondents herein are free to withdraw a sum of
Rs.50,000/- out of Rs.75,000/-, deposited by the revision
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petitioner in terms of the order dated 30.3.2010 of this court in
Crl.M.A.No.3329/10. The respondents are also free to withdraw
the future maintenance amount being deposited by the revision
petitioner. It is made clear that, based upon the outcome, on the
petition proposed to move by the revision petitioner, for setting
aside the exparte order, it is upto the Family Court to either
decide the case afreshly or to reiterate its earlier decision. The
Family Court, Ernakulam, is also directed to withdraw the
coercive steps, if any, taken against the revision petitioner upon
Crl.M.P.No.329/09. The Family Court is also directed to expedite
the matter as early as possible.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/