Kerala High Court
Suresh Kumar.P.V vs Sreehari (Minor) on 31 March, 2014
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 12TH DAY OF NOVEMBER 2014/21ST KARTHIKA, 1936
RPFC.No. 228 of 2014 ()
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AGAINST THE ORDER IN MC 308/2011 of FAMILY COURT, KOTTAYAM,
DATED 31-03-2014
REVISION PETITIONER(S):
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SURESH KUMAR.P.V., AGED 43 YEARS,
S/O.LATE VISWANATHAN, POOTHOTTUMUKKIL PADINJARATHIL,
THITTAMELKARA, CHENGANNUR VILLAGE, CHENGANNUR TALUK,
ALAPPUZAH DISTRICT.
BY ADV. SRI.VIJAI MATHEWS
RESPONDENT(S):
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1. SREEHARI (MINOR), AGED 10 YEARS,
S/O.SINDHU DEVI .K, KRISHNAVILASAM, POOVANTHURUTHU P.O.,
PANACHIKKADU VILLAGE, KOTTAYAM DISTRICT-686 012.
NOW RESIDING AT
JAWAHAR NAVODAYA VIDYALAYA STAFF QUARTERS,
JAWAHAR NAVODAYA VIDYALAYA, GALLEBEEDU P.O., MADIKKERY,
KARNATAKA STATE
PIN - 571 201
(REPRESENTED BY 3RD RESPONDENT MOTHER AND GUARDIAN).
2. SREESANTH (MINOR), AGED 6 YEARS,
S/O.SINDHU DEVI .K, KRISHNAVILASAM, POOVANTHURUTHU P.O.
PANACHIKKADU VILLAGE, KOTTAYAM DISTRICT-686 012
NOW RESIDING AT
JAWAHAR NAVODAYA VIDYALAYA STAFF QUARTERS
JAWAHAR NAVODAYA VIDYALAYA, GALLEBEEDU P.O., MADIKKERY
KARNATAKA-571 201
(REPRESENTED BY 3RD RESPONDENT MOTHER AND GURARDIAN).
3. SINDHU DEVI .K, AGED 40 YEARS,
D/O.KRISHNAN ACHARI, KRISHNAVILASAM,
POOVANTHURUTHU P.O., PANACHIKKADU VILLAGE,
KOTTAYAM DISTRICT-686 012
NOW RESIDING AT
JAWAHAR NAVODAYA VIDYALAYA STAFF QUARTERS
JAWAHAR NAVODAYA VIDYALAYA, GALLEBEEDU P.O., MADIKKERY,
KARNATAKA-571 201
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON
12-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ss
K. RAMAKRISHNAN, J.
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R. P.(F.C.) No.228 of 2014
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Dated this the 12th day of November, 2014
O R D E R
Counter petitioner in M.C.No.308/2011 on the file of the Family Court, Ettumanoor, is the revision petitioner herein. The respondents herein are the children of the revision petitioner. They filed the application for maintenance through their mother, stating that, the revision petitioner is not providing any maintenance and the income derived by the mother is not sufficient to meet their requirements and they required 7,000/- each for their maintenance.
2. Though notice was served on the respondents and he appeared, he did not file any objection, so the learned Family Court Judge declared him ex parte. He filed an application to set aside ex parte order and that was allowed on payment of cost of 1,000. Though two R. P.(F.C.) No.228 of 2014 2 opportunities were given for payment of cost to the revision petitioner, but he did not pay the cost and so the Family Court declared him ex parte and proceeded with the case as ex parte and after considering the evidence adduced on the side of the petitioners, the Family Court allowed the petition in part, directing the revision petitioner to pay maintenance at the rate of 2,500/- each, to each petitioner from the date of petition and the mother was permitted to receive the amount on their behalf. Dissatisfied with the same, the present revision has been filed. Though notice was served on the respondents, they did not appear. So the revision is admitted and disposed of today itself, after hearing the counsel for the revision petitioner.
3. The counsel for the revision petitioner submitted that, the documents produced by him will go to show that, he is a chronic kidney patient, unable to do any work and he is not able to pay maintenance. He prayed for an opportunity to contest the case.
R. P.(F.C.) No.228 of 2014 3
4. It is an admitted fact that the petitioner is the father of the two minor children, who were arrayed as respondents in the petition, who were born to him in the wedlock with the mother of the minor children. It is also in away admitted that, they are now residing separately and no maintenance has been provided to the children. The mother of the minor children is a teacher and it was alleged in the petition that the revision petitioner is an L.I.C. agent getting 20,000/- per month. It was on that basis that the maintenance amount was awarded. It difficult to fully support the submission made by the counsel for the revision petitioner that, because he is ill he has no responsibility to maintain the children. It is also seen from the order itself that though he appeared, he did not file any objection and he was declared ex parte and he filed an application to set aside ex parte order and that was allowed on payment of cost of 1,000/-, in spite of that, he did not pay the amount as well. So under the circumstances, it cannot be said that, R. P.(F.C.) No.228 of 2014 4 court had committed any illegality really in proceeding with the case ex parte. However considering the grievance mentioned in the revision petition, this court feels that an opportunity has to be given to him to meet the case on merit. But at the same time, the inconvenience caused to the petitioners in the lower court, who are the unfortunate minor children of the revision petitioner has to be taken into consideration, for the latches on the part of the revision petitioner in not conducting the case properly.
So the order of the lower court will be set aside and an opportunity can be given to the petitioner to proceed with the case, on condition that the petitioner shall deposit 2,500/- as cost before the family court, within one month from today and if the cost is paid within that time, then the lower court is directed to set aside the ex parte order of maintenance passed and give an opportunity to the revision petitioner to file his objection and contest the case. If the amount is not paid within that time, then the order passed R. P.(F.C.) No.228 of 2014 5 by the court below will be confirmed and he will be liable to pay maintenance at the rate found by the court below in the ex parte order. Till that time, the petitioner is directed to pay interim maintenance at the rate of 1,250/- per month before the court below to the children. If any amount is deposited, then that is directed to be disbursed to the mother of the minor children on their behalf for their maintenance. If the cost is not paid as directed above, then the ex parte order of maintenance passed by the court below will be restored and the petitioners are entitled to execute the same in accordance with law.
With the above direction, the revision is allowed. Office is directed to communicate this order to the concerned court, immediately.
Sd/-
K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss