High Court of KeralaSingle Judge2020-02-25Original petition dismissed.

Sajeevan v. Jeeja and Gokul (O.P.(Crl).No.109 of 2020)

Case / Petition Number:O.P.(Crl).No.109 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Narayana Pisharadi
Judgment Date: 2020-02-25
Court Decision / Holding: Consequently, the original petition is dismissed.
Final Disposition: Original petition dismissed.

Parties to the Case

Appellants / Petitioners

Sajeevan

Respondents

Jeeja
Gokul

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M. Shaju Purushothaman
• Sri. K.S. Rajesh

Case Synopsis & Summary

This is an execution challenge under Section 128 Cr.P.C. by Sajeevan, the father of a family, against maintenance arrears awarded to his former wife Jeeja and their son Gokul by the Family Court, Thrissur. Ext.P2 (dated 25.06.2014) in MC No.618/2013 directed the petitioner to pay Rs.4,500 per month to Jeeja and Rs.4,600 per month to Gokul from the date of the order. The respondents filed MP(Exe) No.843/2019 for enforcement of Ext.P2, and the Family Court issued notices and, reportedly, a warrant of arrest when the petitioner appeared and challenged the matter. The petitioner contends that the entire arrears could not be realized since the execution petition was not filed within one year from the date the maintenance became due, arguing that the respondent(s) may have attained majority, which would affect the period of limitation. He also states that the date of attainment of majority is not stated in the petition; no documentary proof of the minority date is produced. He prays for three months to settle the arrears in lump sum. The petitioner asserts that the maintenance liability under Section 125 Cr.P.C. is continuing and should be liberally construed for welfare. The court ultimately holds that while maintenance is a continuing liability and the first proviso to Section 125(3) does not bar arrears, the lack of a pleaded majority date and evidence thereof prevents granting more time, and disposes of the petition by dismissal.

Provisions of Law Cited

Section 125(3) Cr.P.C.First proviso to Section 125(3) Cr.P.C.Section 128 Cr.P.C.Section 125 Cr.P.C.Section 6 of the Limitation ActSection 29(2) of the Limitation ActArticle 227 of the Constitution of IndiaSection 125(1) Cr.P.C.

Legal Doctrines & Maxims

Maintenance under Section 125 Cr.P.C. is a measure of social legislation and must be construed liberally for the welfare and benefit of the wife and children (Shantha @ Ushadevi v. Shivananjappa, AIR 2005 SC 2410).
The first proviso to Section 125(3) Cr.P.C. creates no bar to recovery of arrears (Poongodi v. Thangavel, AIR 2014 SC 24).
Minor entitled to the same period after disability ceases under Section 6 of the Limitation Act read with Section 29(2) (Benny Varghese v. Siby P.Kuruvilla, 2013 (4) KHC 884: 2014 (1) KLT 93).

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that maintenance under Section 125 Cr.P.C. is a continuing obligation, and execution under Section 128 Cr.P.C. must be pursued within the limitation period. He asserts that the respondents have attained majority, and the petition for execution MP(Exe) 843/2019 was not filed within one year from the date the maintenance became due; the date of majority is not stated in the petition, and there is no material proving minority. He contends that if the majority date exists, the application would be maintainable within one year from that date, as recognized by law. He seeks three months to settle the arrears by lump sum, noting a payment of Rs.10,000 on 23.01.2020, though no receipt is produced. He urges that any objection should be entertained by the Family Court and that the petitioner may approach it to obtain time for payment.

Contentions of Respondents

The respondents assert that maintenance is a continuing obligation under Section 125 Cr.P.C., and arrears may be realized despite elapsed time, subject to lawful procedure. They rely on liberal construction of welfare statutes for wives and children but emphasize that the proviso to Section 125(3) does not bar arrears entirely and that warrants of arrest were issued to enforce compliance. They argue that the lack of a pleaded or proven majority date does not bar recovery altogether, and execution should proceed; any request for time to pay should be made to the Family Court, which granted the enforceable orders originally, rather than this court bypassing the established process.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Shantha @ Ushadevi v. Shivananjappa	AIR 2005 SC 2410	Positive	Cited to justify liberal interpretation of Section 125 Cr.P.C. as a social welfare measure.
Poongodi v. Thangavel	AIR 2014 SC 24	Positive	Cited to support that the first proviso to Section 125(3) Cr.P.C. does not bar arrears.
Benny Varghese v. Siby P.Kuruvilla	2013 (4) KHC 884: 2014 (1) KLT 93	Positive	Cited to affirm that a minor may claim arrears after attaining majority within the period prescribed by law (Section 6 with Section 29(2)).

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **OP(Crl.).No.109 OF 2020** **IN RESPECT OF THE PROCEEDINGS IN M.P.(Exe).843/2019 IN MC 618/2013 OF FAMILY COURT,THRISSUR** ## **PETITIONER/RESPONDENT:** **SAJEEVAN AGED 51 YEARS S/O.MADHAVAN, CHETTIPARAMBIL HOUSE, SN PURAM WEST, P.O.PADINJARE VEMBALLUR, KODUNGALLUR TALUK.** **BY ADVS. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH** ## **RESPONDENTS/PETITIONERS:** **1 JEEJA AGED 48 YEARS D/O.SEKHARAN, KUTTANPARA HOUSE, EDASSERY DESOM, THALIKULAM VILLAGE, CHAVAKKAD TALUK, PIN-680 569.** **2 GOKUL** **S/O.SAJEEVAN, CHETTIPPARAMBIL HOUSE/REPRESENTED BY MOTHER, JEEJA, D/O.SEKHARAN, AGED 48 YEARS, KUTTANPARA HOUSE, EDASSERY DESOM, THALIKULAM VILLAGE, CHAVAKKAD TALUK, PIN-680 569.** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20-02-2020, THE COURT ON 25-02-2020 DELIVERED THE FOLLOWING:** O.P.(Crl) No.109/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ O.P.(Crl) No.109 of 2020 -----------------------------------------------Dated this the 25[th] day of February, 2020 ## **J U D G M E N T** The petitioner is the father and the second respondent is the son. The first respondent is the former wife of the petitioner. The second respondent was born in their wedlock. 2. The respondents had filed an application as M.C.No.618/2013 against the petitioner for enhancement of the maintenance awarded to them in M.C.No.91/1999. As per Ext.P2 order dated 25.06.2014 in M.C.No.618/2013, the petitioner herein was directed to pay enhanced maintenance at the rate of Rs.4,500/- per month to the first respondent and at the rate of Rs.4,600/- per month to the second respondent from the date of that order. 3. The respondents filed an application as M.P (Exe) No.843/2019 under Section 128 of the Code of Criminal O.P.(Crl) No.109/2020 3 Procedure, 1973 (hereinafter referred to as 'the Code') for execution of Ext.P2 order. The Family Court, Thrissur issued notice to the petitioner to appear in the aforesaid application. 4. It is stated that the petitioner appeared before the Family Court and made submissions to the effect that the maintenance claimed by the second respondent could not be realised in full, as part of such claim was not made within a period of one year. It is also stated that, the Family Court issued warrant of arrest against the petitioner and posted the application to 23.01.2020. It is further stated that the petitioner paid an amount of Rs.10,000/- to the respondent on that day but the warrant of arrest was not recalled by the Family Court. 5. In the aforesaid circumstances, the petitioner has filed this original petition under Article 227 of the Constitution of India, praying that he may be granted a period of three months to settle the maintenance amount claimed by the respondents by payment in lump. 6. Heard learned counsel for the petitioner. O.P.(Crl) No.109/2020 4 7. A plea is raised in this original petition filed before this Court that the second respondent has attained majority and the entire amount claimed by the respondents could not be realised from the petitioner because the application was filed not within the period of one year from the date on which the maintenance amount became due. 8. It is not stated in the petition what is the date on which the second respondent attained majority. The petitioner has produced no document to prove the date on which the second respondent attained majority. 9. Even assuming that the second respondent has now attained majority, if the application for execution of the order of maintenance was filed within a period of one year from the date of attaining majority, it is not barred under the first proviso to Section 125(3) of the Code. 10. 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 O.P.(Crl) No.109/2020 5 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. 11. 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** ). 12. 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** ). 13. 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 O.P.(Crl) No.109/2020 6 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 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. 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** ). 14. Therefore, the entire amount of arrears of maintenance due to the second respondent could be claimed by him, if he has filed the application for execution within a period of one year from the date of attaining majority. O.P.(Crl) No.109/2020 7 15. It is stated in this original petition that the petitioner appeared before the Family Court in response to the notice served on him and that he made objection to the maintainability of the application. No material is produced before this Court to find that the petitioner had appeared before the court and submitted any written objection to the application filed by the respondents. 16. It is also stated in this original petition that warrant of arrest was issued against the petitioner by the Family Court. The petitioner has not produced copy of the order of the Family Court issuing warrant of arrest against him. There is also no material produced by the petitioner to prove that any warrant of arrest has been issued against him. 17. It is also stated in this original petition that the petitioner paid Rs.10,000/- to the respondents on 23.01.2020. No receipt or other document is produced before this Court to prove any such payment made by the petitioner. 18. In the aforesaid circumstances, I find no sufficient ground to grant any time to the petitioner to pay the amount of O.P.(Crl) No.109/2020 8 maintenance due to the respondents. If at all the petitioner has got any objection to the application for execution filed by the respondents in the Family Court, he has to appear before that court and file objection before that court. If at all the petitioner wants time to make payment of arrears of maintenance due to the respondents, he has to approach the Family Court itself and make such prayer before that court. Consequently, the original petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr O.P.(Crl) No.109/2020 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF MP(EXE) 843/2019 DATED 04.05.2019.** **EXHIBIT P2 THE TRUE COPY OF THE ORDER IN MC NO.618/2013 PASSED BY THE FAMILY COURT, THRISSUR DATED 25.06.2014.** **EXHIBIT P3 THE TRUE COPY OF THE NOTICE ISSUED IN MP(EXE.) 843/2019 DATED 30.07.2019.** ## **RESPONDENTS' EXHIBITS: NIL** TRUE COPY PS TO JUDGE