O.P.(Criminal) No. 265 of 2023: Jacob K. John @ Bibu v. Jessica and Joanna (Minors) represented by Elizabeth Vargheese

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 13[TH] DAY OF JUNE 2023 / 23RD JYAISHTA, 1945** ## **OP(CRL.) NO. 265 OF 2023** **AGAINST THE ORDER IN CMP 22/22 IN MC 61/2014 OF FAMILY COURT, THIRUVALLA** ## **PETITIONER/RESPONDENT/RESPONDENT:** **JACOB K.JOHN @ BIBU AGED 49 YEARS S/O JOHN JACOB, J.J.VILLA, KAITHAPARAMBIL KOTTATHODU MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT PIN-689101, NOW RESIDING AT P.O.BOX 302 JIBROO, POSTAL CODE -144,SULTANATE OF OMAN. REPRESENTED BY POWER OF ATTORNEY HOLDER, LEELAMMA JOHN, AGED 74 YEARS, KAITHAPARAMBIL KOTTATHODU MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT PIN-689101, PIN - 689101** **BY ADV K.N.RADHAKRISHNAN(THIRUVALLA)** ## **RESPONDENTS/PETITIONERS/RESPONDENTS:** - **1 JESSICA AGED 16 YEARS** **D/O MARIAM VARGHESE, THENGANAMKULATHU HOUSE, KATTOOKKARA MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK, PIN- 689101 MINOR REPRESENTED BY POWER OF ATTORNEY HOLDER ELIZABETH VARGHESE NEXT FRIEND MOTHER MARIAM VARGHESE, THENGANAMKULATHU HOUSE, KATTOOKKARA MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK PIN-689101, PIN - 689101 2 JOANNA AGED 12 YEARS D/O MARIAM VARGHESE, THENGANAMKULATHU HOUSE, KATTOOKKARA MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK, PIN- 689101 MINOR REPRESENTED BY POWER OF ATTORNEY HOLDER ELIZABETH VARGHESE NEXT FRIEND MOTHER MARIAM VARGHESE, THENGANAMKULATHU HOUSE, KATTOOKKARA MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK PIN-689101, PIN – 689101** **BY ADVS. S.RAJAN SIDHARTHAN V.K.(K/281/1987) K.J.VALSALA KUMARI(K/462/1981)** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 13.06.2023, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CRL) NO.265 OF 2023 2 ## **JUDGMENT** ## **Dated this the 13[th] day of June, 2023** The petitioner was the respondent in M.C.No.61 of 2014 of the Family Court, Thiruvalla filed by his children claiming maintenance allowance at the rate of Rs.30,000/- each. The Family Court found the petitioner liable to pay maintenance allowance at the rate of Rs.7,500/- each from 06.08.2014 onwards. The children subsequently filed execution petitions before the Family Court, since the petitioner did not pay the maintenance as directed. The amounts claimed in those petitions were paid by the petitioner. The dispute herein is with regard to Ext.P2 execution petition filed due to the default in paying the monthly maintenance allowance from August 2019 to March 2022, amounting to Rs.4,80,000/-. The petitioner filed Ext.P3 objection to the execution petition contending that, in view of the proviso to Section 125(3) Cr.P.C., the claim should be confined to one year prior to the O.P.(CRL) NO.265 OF 2023 3 date on which the amount became due and hence, execution can be effected only for the arrears from March 2021 to March 2022. After raising such objection, the petitioner paid arrears of maintenance for the one year period from March 2021 to March 2022. By Ext.P4 order, the Family Court directed to issue bailable warrant to the petitioner, finding a huge amount to be outstanding. Aggrieved, this original petition is filed. 2. Learned Counsel for the petitioner contended that the impugned order is liable to be set aside for non-application of mind and absence of reasons. Moreover, the order is passed without adverting to the specific contention urged by the petitioner, based on the proviso to Section 125(3). It is pointed out that, the Hon’ble Supreme Court in **Poongodi and another v. Thangavel [2013 KHC 4784]** has held that no warrant can be issued for realisation of the amount for the period preceding one year of default. The same O.P.(CRL) NO.265 OF 2023 4 ## view is expressed by this Court in **Praveen v. Sabitha and another [2017 (2) KHC 1003]** also. 3. Learned Counsel for the respondents submitted that, as maintenance allowance for the period from August 2019 to March 2022 was due and the petitioner has only paid the arrears from March 2021 to March 2022, the right to claim the balance amount will not get extinguished by virtue of the proviso to Section 125(3). 4. In order to decide the issue it is necessary to read Section 125(3) and its proviso, extracted hereunder; “If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a O.P.(CRL) NO.265 OF 2023 5 period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.” ## 5. Section 125(3) provides for sentencing a person to imprisonment for non-payment of maintenance ordered, the proviso makes it clear that warrant shall not be issued for recovery of any amount due under the Section, unless an application is made to the court within a period of one year from the date on which the amount became due. In the case at hand, execution is sought with respect to the arrears from August 2019 to March 2022 and the petition filed in April 2022. As per the proviso to Section 125(3), warrant can be issued for recovery of the amount only for the period from March 2021 to March 2022, the one year period preceding the date on which the execution petition was filed. Indisputably, maintenance allowance for that period O.P.(CRL) NO.265 OF 2023 6 was paid by the petitioner. Being so, Ext.P4 order directing to issue bailable warrant against the petitioner cannot be sustained. This precisely is the dictum laid down by the Apex Court in **Poongodi and another** and **Praveen v. Sabitha** (Supra). I find the impugned order to be unsustainable also for absence of reasons and non-application of mind. As has been often repeated, reasons are the soul of judicial orders and sans reasons, the order will not stand. 6. For the aforementioned reasons, the original petition is allowed and Ext.P4 order is set aside. Learned Counsel for the petitioner submitted that the maintenance allowance will be paid promptly, if the bank account details of the mother is provided. It is pointed out that the children, their mother and the petitioner are presently abroad, and it will be easier for the parties, if the maintenance allowance is remitted to the bank account of the mother. I find the suggestion to be well founded. The Family Court, Thiruvalla shall therefore, require the respondents, represented by O.P.(CRL) NO.265 OF 2023 7 their power-of-attorney holder, to provide the bank account details of the mother of the minor children. On the details being provided, the petitioner shall remit the maintenance allowance to that account without default. **Sd/-** **V.G.ARUN JUDGE** NB/13-6 O.P.(CRL) NO.265 OF 2023 8 ## **APPENDIX OF OP(CRL.) 265/2023** **PETITIONER’S EXHIBITS: EXHIBIT P1 THE COPY OF COMMON ORDER OF THE FAMILY COURT, THIRUVALLA IN M.C NO. 61/2014 DATED 18.06.2016 EXHIBIT P2 THE COPY OF CMP NO. 22/2022 IN M.C NO. 61/2014 OF THE FAMILY COURT, THIRUVALLA EXHIBIT P3 THE COPY OF OBJECTION FILED BY THE COUNSEL FOR THE RESPONDENT AGAINST EXHIBIT P2, DATED 06.10.2022 EXHIBIT P4 THE CERTIFIED COPY OF ORDER IN CRL MP NO. 22/2022 IN MC NO. 61/2014 OF THE FAMILY COURT , THIRUVALLA DATED 16.01.2023** ## **RESPONDENTS’ EXHIBITS: NIL** **TRUE COPY** **P.A. TO JUDGE**