Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL THURSDAY, THE23D DAY OF JANUARY20143RD MAGHA, 1935 RPFC.No. 67 of 2013 ( ) -------------------------------- AGAINST THE ORDER
IN M.C.NO.172/2007 of FAMILY COURT, THIRUVANANTHAPURAM DATED1510-2007 REVISION PETITIONER/2ND RESPONDENT ------------------------------------------------------------ ANIL KUMAR, S/O JAYACHANDRAN, THERUVIL VEEDU, PERUNKUZHI DESOM, AZHOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.DINESH RESPONDENTS/PETITIONER & 1ST RESPONDENT ------------------------------------------------------------------------ 1. JAYACHANDRAN, CHARUVILA PUTHENVEEDU, KEEZHTHONNAKKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT.
2. PREM DAS, S/O. JAYACHANDRAN, THERUVIL VEEDU, PERUNKUZHI DESOM, AZHOOR VILLAGE, THIRUVANANTHAPURAM DIST. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON2301-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MJL RPFC.No. 67 of 2013 ( ) APPENDIX PETITIONER'S ANNEXURES: ANNEXURE -I : TRUE COPY OF THE DISABILITY CERTIFICATE DATED1610/2008 ISSUED TO THE2D RESPONDENT FROM MENTAL HEALTH CENTRE, THIRUVANANTHAPURAM ANNEXURE -II : TRUE COPY OF THE I.A.NO.208/2008 IN M.C.172/2007 FILED BEFOFRE THE FAMILY COURT, THIRUVANANTHAPURAM. ANNEXXURE -III : TRUE COPY OF THE ORDER
DATED1307/2009 IN I.A NO.208/2008 IN M.C. 172/2007 OF THE FAMILY COURT, THIRUVANANTHAPURAM. RESPONDENTS' ANNEXURES: NIL /TRUE COPY/ P ATO JUDGE MJL K. HARILAL, J.
---------------------- R.P.(F.C.) No.67 of 2013 -------------------------------- Dated this the 23rd day of January, 2014 ORDER
The revision petitioner is the respondent No.2 in M.C.No.172 of 2007 on the files of Family Court, Thiruvananthapuram. He is the son of the 1st respondent herein. The above petition was filed by his father under Section 125 of the Code of Criminal Procedure seeking maintenance allowance from the revision petitioner and another son. The respondent is aged 60 years, and he is suffering from several diseases. He has no source of income and is residing in a rented house. He is unable to maintain himself. But the respondent has been neglecting to pay maintenance allowance to him. A considerable amount is required for his medical treatment. Hence the above petition was filed claiming maintenance allowance @ 1,500/- each from the respondents 1 and 2 in the impugned order. R.P.(F.C.) No.67 of 2013 2 2. The revision petitioner remained ex parte and allegation in the petition was proved by an affidavit filed by the respondent. In the absence of any contra evidence, the court below relying on the averments in the affidavit directed the revision petitioner to pay maintenance @ 1000/- each per month from respondents 1 and 2 in the impugned order with effect from the date of petition ie. from 04/08/2007.
3. The learned counsel for the revision petitioner submits that the revision petitioner was working abroad so he could not appear before the court below, when the case was taken for trial. There was no wilful negligence or latches in not appearing before the court for contesting the case properly. The learned counsel sought for an opportunity to contest the matter on merits.
4. It is true that the 1st respondent is none other than his father and he has statutory liability to pay maintenance allowance to his father under Section 125 R.P.(F.C.) No.67 of 2013 3 of the Code of Criminal Procedure. But the specific case advanced in this petition by the revision petitioner is that the father is having sufficient means and he could not enter appearance and adduce evidence as he was laid up due to viral fever. The learned counsel for the revision petitioner sought for an opportunity to contest the matter on merits.
5. Adjudication of lis on merits, after affording sufficient opportunity to both parties to adduce evidence, is desirable than disposal on technicalities. Similarly, when substantial justice and technical considerations are pitted against each other, the substantial justice deserves to be preferred. In the above view, I am of the opinion that the revision petitioner can be given an opportunity to contest the M.C. on merits on conditions.
6. Consequently, the impugned order will stand set aside on compliance of the following conditions: (i) The revision petitioner R.P.(F.C.) No.67 of 2013 4 shall deposit the entire arrear due to the 1st respondent under the impugned order within a period of one month from today. (ii) The revision petitioner shall pay a cost of 5,000/- (Rupees five thousand only) to the 1st respondent, within one month. (iii) The revision petitioner shall continue to pay maintenance allowance, as ordered under the impugned order, till the disposal of the case. On compliance of the above conditions within the specified time, the learned Family Court Judge shall restore the complaint on files and proceed in accordance with law and pass orders, afresh after affording sufficient opportunities to both parties to adduce evidence. It is also made clear that considering the long lapse of time, after the passing of the impugned order and also the change of R.P.(F.C.) No.67 of 2013 5 circumstances, the 1st respondent/petitioner is allowed to make amendments in the petition and in that case, the revision petitioner can also file counter to the same. This revision petition is disposed of in the above terms. Sd/-K.HARILAL JUDGE MJL/NAN