E.V. Gopalakrishnan v. Ashin Krishna

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **OP(Crl.).No.100 OF 2020** **C.M.P.NO.436/2019 IN MC 411/2013 OF FAMILY COURT, KANNUR** ## **PETITIONER/RESPONDENT:** **E.V.GOPALAKRISHNAN AGED 52 YEARS S/O. LATE VASUDEVAN, NEAR KANKOL U P SCHOOL, ALAPPADAMBA VILLAGE, PAYYANNUR, NOW RESIDING C/O ASIAN GAMES WINNER VISMAYA, KOTHAMANGALAM , AMBALAMUKK, ERNAKULAM DISTRICT 686 691.** **BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.M.VIVEK RABINDRANATH** ## **RESPONDENT/PETITIONER:** **ASHIN KRISHNA S/O. GOPALA KRISHNAN, KOLLARETH HOUSE, PALLIPARAMBA ROAD, P.O. KOLACHERY, KOLACHERY VILLAGE, TALIPARAMBA TALUK, KANNUR DISTRICT 670 602.** ## **SRI AJITH MURALI-PP** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17.02.2020, THE COURT ON 19.02.2020 DELIVERED THE FOLLOWING:** O.P.(Crl) No.100/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ O.P.(Crl) No.100 of 2020 ----------------------------------------------Dated this the 19[th] day of February, 2020 ## **J U D G M E N T** The petitioner is the father and the respondent is the son. 2. The respondent, while he was a minor, had obtained an order against the petitioner under Section 125(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') in M.C.No.411/2013. As per the order dated 23.12.2014 in M.C.No.411/2013, the court had directed the petitioner to pay Rs.1,500/- per month as maintenance to the respondent. The aforesaid order was passed on the basis of a compromise entered into between the parties. 3. The respondent filed C.M.P.No.436/2019 in the Family Court, Kannur on 21.08.2019 for realisation of the arrears of maintenance due from the petitioner from 23.12.2014 to 19.09.2018, the date on which the respondent attained majority. O.P.(Crl) No.100/2020 3 The respondent alleged that the petitioner had made wilful default in payment of the amount of maintenance ordered to be paid to him by the court. 4. The petitioner filed a counter statement in the aforesaid application contending as follows: The respondent attained majority on 19.09.2018. Since the respondent attained majority, he can claim maintenance only for the period for the last one year. The petition is filed on 28.08.2019. Hence, the respondent can claim maintenance only for the period from 29.08.2018 to 18.09.2018. 5. As per the impugned order, the Family Court rejected the objection raised by the petitioner to the maintainability of the application filed by the respondent and directed the petitioner to pay the amount claimed by the respondent. The petitioner has challenged the aforesaid order in this original petition filed under Article 227 of the Constitution of India. 6. Heard learned counsel for the petitioner. 7. The order granting maintenance to the respondent was passed by the Family Court on 23.12.2014. Admittedly, at O.P.(Crl) No.100/2020 4 that time, the respondent was a minor. The respondent filed the application on 21.08.2019 for executing the order of maintenance in his favour. He had attained majority on 19.09.2018. 8. There is no merit in the contention of the petitioner that the application filed by the petitioner for arrears of maintenance for the period from 23.12.2014 to 19.09.2018 is barred by limitation, except for the period from 29.08.2018 to 18.09.2018. 9. Section 125(3) of the Code provides that, if any person ordered to pay maintenance, fails without sufficient cause to comply with the order, the Magistrate may take steps for levying the amount in the manner prescribed therein. The first proviso to Section 125(3) of the Code states that, no warrant shall be issued for the recovery of any amount due under Section 125 Cr.P.C., unless application is made to the court to levy such amount within a period of one year from the date on which it became due. O.P.(Crl) No.100/2020 5 10. Liability to pay the maintenance as per the order passed under Section 125(1) of the Code is a continuing liability. Section 125 of the Code is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and the children (See **Shantha @ Ushadevi v. Shivananjappa : AIR 2005 SC 2410** ). 11. The first proviso to Section 125(3) of the Code creates no bar or it does not in any way affect the entitlement of a claimant to arrears of maintenance (See **Poongodi v. Thangavel : AIR 2014 SC 24** ). 12. The general provision is that an execution petition for arrears of maintenance for a period beyond one year is neither maintainable nor enforceable under Section 125(3) of the Code. But, a minor is legally disabled to sue or be sued independently during the period of his minority. According to Section 6 of the Limitation Act, where a person entitled to institute a suit or make an application for the execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within the same period O.P.(Crl) No.100/2020 6 after the disability has ceased as would otherwise have been allowed. Thus, for making an application for execution of an order of maintenance, the minor gets the same period after the disability has ceased. A minor, in whose favour an order for maintenance is granted, would get protection of legally disabled persons for filing execution petition for realising arrears of maintenance allowance due for a period beyond one year. Section 6 of the Limitation Act read with Section 29(2) of that Act would come to rescue him for claiming the entire arrears accrued by the time of his attaining majority and a petition can be filed within one year of attaining majority for that purpose (See **Benny Varghese v. Siby P.Kuruvilla : 2013 (4) KHC 884 : 2014 (1) KLT 93** ). 13. The issue involved in this case is squarely covered by the decision of this Court in **Benny Varghese** (supra). 14. In the instant case, the respondent has filed the application for execution of the order of maintenance in his favour, within a period of one year from the date of attaining majority. O.P.(Crl) No.100/2020 7 15. The respondent had alleged in the application that the petitioner made wilful default in payment of the maintenance due to him. This allegation is not denied in the counter statement filed by the petitioner. 16. In the aforesaid circumstances, I find no illegality or impropriety in the impugned order passed by the Family Court. The petition is liable to be dismissed. Consequently, the original petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** ## **jsr** O.P.(Crl) No.100/2020 8 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PETITION IN C.M.P. NO. 436/2019 ON THE FILE OF FAMILY COURT, KANNUR DATED 28.8.2019.** **EXHIBIT P2 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER IN C.M.P. NO. 436/2019 ON 2.12.2019. EXHIBIT P3 TRUE COPY OF THE ORDER IN C.M.P. NO. 436/2019 ON THE FILE OF FAMILY COURT, KANNUR DATED 15.1.2020.** ## **RESPONDENT'S EXHIBITS: NIL** TRUE COPY PS TO JUDGE