SABU v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** **Crl.MC.No. 1405 of 2017** **[AGAINST THE ORDER IN CMP 2886/2013 IN MC,C,NO.35/2011 of JUDICIAL FIRST CLASS MAGISTRATE-I,ERNAKULAM DATED 06-02-2017]** ## **PETITIONER/RESPONDENT NO.1:** ## **SABU** **S/O.THOMAS, AGED 41 YEARS,VADASSERRY HOUSE, NEW YEAR ROAD,PONNURUNNI, ERNAKULAM - 682 019.** **BY ADV. SRI.JAI GEORGE** ## **RESPONDENTS:** - **1 STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM - 682 031.** - **2 NISHI JOSEPH** **AGED 39 YEARS, D/O.LATE T.J.JOSEPH,RESIDING AT VADASSERRY HOUSE,NEW YEAR ROAD, PONNURUNNI,ERNAKULAM - 682 019.** - **3 SARA SABU** **AGED 8 YEARS, S/O.SABU THOMAS,RESIDING AT VADASSERRY HOUSE,NEW YEAR ROAD, PONNURUNNI,ERNAKULAM - 682 019.** **BY ADVS. SMT.B.BINDU R2 AND R3 BY SRI.C.S.DIAS SMT.P.T.MARY SRI.N.K.SUBRAMANIAN R1 BY SR.PUBLIC PROSECUTOR SRI.D.CHANDRASENAN.** CRL.M.C.NO.1405 OF 2017 :-2-: **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON** **01.03.2019, THE COURT ON 09.04.2019 PASSED THE FOLLOWING:** CRL.M.C.NO.1405 OF 2017 :-3-: ## **Crl.M.C.No.1405 of 2017** ## **O R D E R** This Crl.M.C. is filed to quash Annexure A5 order dated 6.2.2017 in CMP No.2886 of 2013 in M.C.No.35/2011 of the Judicial First Class Magistrate Court-I, Ernakulam (for short 'the court below'). 2. The petitioner and the second respondent in this Crl.M.C. are husband and wife and the third respondent is their daughter born in the wedlock. Due to severe matrimonial dispute, the second and third respondents filed M.C.No.35/2011 before the court below invoking the provisions of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act'). Pending proceedings, the petitioner and the second respondent were referred to Ernakulam Mediation Centre for settlement. Resultantly, the parties filed compromise petition dated 21.02.2012 before the court below as per Annexure A1(2). The terms contained in Annexure A1(2) are as follows:- “1. The subject matter in the above case has been settled in the mediation talks held between the parties on 25.01.2012, before the Mediator, Adv.K.K.Vijayakumar. 2. The 1st complainant and the respondent have decided to cohabit in the shared household with their daughter the 2nd complainant. The 1st complainant and the respondent have also agreed to live as man and wife in the most congenial manner and lead a happy married life. 3. The respondent has agreed to assign his share in CRL.M.C.NO.1405 OF 2017 :-4-: the shared household comprised in Survey No.633/1 and the house bearing No.30/1726 A, described in document No.1832/85 of Thripunithura Sub Registry, in favour of the complainants by way of a settlement deed within one month from today at the cost of the 1st complainant and it should be duly registered before the competent Sub Registry. 4. The respondent also undertakes to start a bank account in the name of the 2nd complainant, within 1 week from today, which can be operated by the 1st complainant and would deposit an amount of Rs.2,500/- per mensum as monthly maintenance allowance to the 2nd complainant, from the month of March,2012. The 1st complainant will be free to withdraw such amount as may be necessary from the bank account to meet to the expenses of the 2nd complainant. 5. The respondent also undertakes to pay the monthly loan instalments to the HDFC Bank, Ravipuram Branch, Ernakulam, without committing any default to close the loan account that he has taken offering the property that he intends to convey in favour of the complainants, as collateral security. 6. The respondent do hereby agree and state that incase he commits any default in the implementation of the terms of this compromise, the complainants would be free to seek for re-opening of this case and the execution of the compromise order.” The petitioner failed to comply with Annexure A1(2). By virtue of Annexure A1 order dated 25.2.2012, M.C.No.35/2011 was allowed on the basis of compromise making it clear that the compromise petition should form part of the order. Since the petitioner failed to comply with Annexure AI compromise order, the second respondent filed Annexure B-1, copy of M.P.NO.2886 of 2013 in MC No.35 of 2011 dated 7.11.2013 before the court below seeking enforcement of Annexue A1 compromise order. Along with Annexure B1, petitioner also filed Annexure B2 M.P. No.2888 of 2013 before the court CRL.M.C.NO.1405 OF 2017 :-5-: below to issue summons to the petitioner through the Palarivattom Police Station for executing Annexure A1 order. Consequent to the said notice, petitioner appeared in the said case and filed Annexure B3 objection to Annexure B1 application. In Annexure B3, the petitioner pleaded that he may be permitted to deposit `2500/- per month towards maintenance allowance of third respondent for the succeeding months. After hearing both sides, learned Magistrate passed Annexure A3 order dated 11.02.2015 as follows:- “In the result, the above petition is allowed by directing to the respondent to deposit or pay the maintenance amount payable to the second petitioner at the rate of Rs.2500/- per month starting from March 2012 within month. Call this petition on 13.3.2015 for verification.” Being aggrieved by the findings of the learned Magistrate in Annexure A3, the second and third respondents filed Crl.M.C.No. 2919 of 2015 before this Court wherein Annexure A4 order was passed modifying Annexure A3 by directing the learned Magistrate to enforce the monetary part of the order in terms of Section 125(3) of the Cr.P.C. Consequent to Annexure A4 order, learned Magistrate passed Annexure A5 order directing to issue distraint warrant against the petitioner to attach the property belonging to him. 3. According to the petitioner, a perusal of Annexure A5 CRL.M.C.NO.1405 OF 2017 :-6-: order would show that on 13.3.2015 itself, the learned Magistrate issued distraint warrant as provided under Section 125(3) of Cr.P.C. for the breach of Annexure A3 order, without issuing any show cause notice to the petitioner, when there is express bar in the proviso 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 period of one year from the date on which it became due. It is contended that the procedure adopted by the learned Magistrate is illegal since Annexure A5 order is issued illegally and thus, the proceedings pursuant to Annexure A5 would be an abuse of process of law. 4. Going by Annexure A3 order on 11.02.2015, it is clear that the court below directed the petitioner to deposit `2500/per month, the maintenance amount payable to the third respondent from March 2012 within a month. Needless to say, the starting period for payment of maintenance arose only with effect from 11.2.2015 pursuant to Annexures B1 and B2 applications filed by the second and third respondents. Feeling aggrieved by the findings of the learned Magistrate in Annexure A3, the second and third respondents filed Crl.M.C.No.2919 of 2015 before this Court wherein Annexure A4 order was passed modifying the impugned order directing CRL.M.C.NO.1405 OF 2017 :-7-: the learned Magistrate to enforce monetary part of the order in terms of 125(3) of Cr.P.C. Consequent to Annexure A4 order passed, the learned Magistrate by Annexure A5 order directed to issue distraint warrant to the petitioner to attach the property belonging to him. The compromise order was passed on 25.02.2012 and put to execution by Annexure B1, pursuant to which Annexure A3 order was passed on 11.2.2015, directing the petitioner to pay the entire arrears of maintenance of `2500/ per month starting from March 2012 within a period of one month. Thereafter, by Annexure A4 order dated 26.8.2016, this Court directed the Magistrate to execute Annexure A3 order as per the provisions of Section 125(3) of Cr.P.C. 5. As per Annexure A3 order, the petitioner is bound to pay `2500/- per month from March 2012 onwards. Thus, from March 2012 to 2017, an amount of `1,50,000/- was in arrears. Out of the aforesaid amount, the petitioner has deposited `30,000/- and is paying `2500/- per month. The balance amount of `1,20,000/- is still in arrears. In view of the above, it is clear that the petitioner has not complied with the order passed by this Court. Further, when the case came up for hearing on 15.11.2018, this Court directed the petitioner to deposit a sum of `50,000/- within a period of 30 days, which CRL.M.C.NO.1405 OF 2017 :-8-: was directed to be disbursed to the third respondent. Learned counsel for the second and third respondents submitted that the said amount is not seen deposited. 6. Learned counsel for the respondents 2 and 3 submitted that for execution of an order passed under the Act, no formal application is required and that the court can suo motu issue warrant for recovery of monetary relief and direct the same to be paid to the aggrieved person, otherwise the defaulter be sent to jail. Learned counsel for the respondents 2 and 3 placed reliance on the decisions in **Kanjan** v. **Vikram Jeet Seteya** [2013 KHC 2115] and **Mini Shanmughan** v. **Shanmughan and another** [2013 (3) KHC 814] and submitted that no formal application is required for execution of an order granting maintenance. Hence it is argued that the plea of limitation is unsustainable in law. The second and third respondents filed Ext.B1 application within time. The starting period of execution will have to be calculated from Annexure A3 dated 11.2.2015, which subsequently got merged with Annexure A4 dated 26.8.2016. Admittedly, Annexures B1 and B2 applications were filed well within time. Subsequent to the filing of Annexures B1 and B2, the learned Magistrate by Annexure A3 order dated 11.2.2015 directed the petitioner to pay `2500/- per month to the third CRL.M.C.NO.1405 OF 2017 :-9-: respondent starting from March 2012. Subsequently, by Annexure A4 dated 26.8.2016, this Court passed a final order directing the court below to enforce the monetary part of the order in accordance with Section 125(3) of Cr.P.C. and also ordered that the right of respondents 2 and 3 to enforce the other non-monetary part of the order by appropriate proceeding was left open. It goes without saying that the right of respondents 2 and 3 to seek enforcement of Anenxures A1,A3 and A4 orders arose only with effect from the date of Annexure A4 order. Judged by the above standards, the application for execution filed by respondents 2 and 3 is not barred by limitation as contended by the learned counsel for the petitioner. 7. On a perusal of the entire materials on record, particularly with reference to the conduct of the petitioner, that an amount of `70,000/- is still in arrears after deducting the part payment made by the petitioner from the total amount of `1,50,000/- , this Crl.M.C. is liable to be dismissed, confirming Annexure A5 order passed by the court below directing distraint warrant to be issued against the petitioner for realising the amount due as per Annexures A1,A3 and A4 orders. It appears that the contention of limitation is set up for the purpose of delaying the payment. CRL.M.C.NO.1405 OF 2017 :-10-: In the result, this Crl.M.C. is dismissed. Let follow up action be taken by the court below in accordance with law. Sd/- **N.ANIL KUMAR** , JUDGE MBS/ CRL.M.C.NO.1405 OF 2017 ## :-11-: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1. A TRUE COPY OF THE ORDER DATED 25.02.2012 IN M.C.NO.35/2011 PASSED BY THE JFCM-I, ERNAKULAM. ANNEXURE A2. A TRUE COPY OF THE COMPLAINT DATED 23.12.2012 FILED BY THE PETITIONER BEFORE THE PALARIVATTOM POLICE STATION. ANNEXURE A3 A TRUE COPY OF THE ORDER DATED 11.02.2015 IN C.M.P.NO.2886/2015 BY THE JUDICIAL FIRST CLASS-I, ERNAKULAM. ANNEXURE A4. A TRUE COPY OF THE ORDER DATED 26.08.2016 IN CRL.M.C.NO.2919/2015 PASSED BY THIS HONOURABLE HIGH COURT. ANNEXURE A5. CERTIFIED COPY OF THE ORDER DATED 06.02.2017 IN C.M.P.NO.2886/2013 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE-I, ERNAKULAM.** **ANNEXURE A6: TRUE COPY OF THE RECEIPT ALONG WITH THE TRACK CONSIGNMENT RECEIVED FROM THE POSTAL DEPARTMENT EVIDENCING THE PAYMENT AND RECEIPT OF RS.2500/- EACH FOR THE MONTH OF APRIL 2017 TO AUGUST 2017.** **ANNEXURE A7: TRUE COPY OF THE RECEIPT NO.BY 317588 DATED 7.12.2018 FOR RS.50,000/- BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ERNAKULAM.** ## **RESPONDENTS' EXHIBITS:** **ANNEXURE B1: COPY OF M.P.NO.2886 OF 2013 IN MC NO.35 OF 2011 DATED 07.11.2013 FILED BY ME BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE-I, ERNAKULAM.** **ANNEXURE B2: COPY OF M.P.NO.2888 OF 2013 IN M.C.NO.35 OF 2011 DATED 07.11.2013 FILED BY ME BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE-I, ERNAKULAM.** **ANNEXURE B3: COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 22.11.2014 TO ANNEXURE B-1 APPLICATION.**