Shareef P. vs Raihanath K & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 2[ND] DAY OF NOVEMBER 2023 / 11TH KARTHIKA, 1945** **RPFC NO. 265 OF 2023** **AGAINST THE ORDER/JUDGMENT MC 64/2020 OF FAMILY COURT, MALAPPURAM CMP (EX) 166/2022 OF FAMILY COURT, MALAPPURAM** ## **REVISION PETITIONER/S:** SHAREEF P AGED 37 YEARS S/O. ABDULLA, AMBALIKUNNATH HOUSE, ELAMARAM, CHERUVAYUR POST, MALAPPURAM DISTRICT., PIN - 673645 BY ADV K.ABOOBACKER SIDHEEQUE ## **RESPONDENT/S:** 1 RAIHANATH K AGED 36 YEARS D/O. ABDULLA, KUNNATH HOUSE, AREEKODE VIA, KEEZHUPARAMBU P.O, MALAPPURAM DISTRICT., PIN - 670643 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT., PIN - 682031 BY ADVS. SHAKTHI PRAKASH MUHASIN K.M.(K/1278/2020) SMT. SEETHA S. PP THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 02.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RPFC NO. 265 OF 2023 2 (Dated this the 2[nd] day of November, 2023) **ORDER** The revision petition is directed against the order in C.M.P(Ex) No.166/2022 in M.C.No.64/2020 of the Family Court, Malappuram sentencing the revision petitioner to civil prison for a period of 420 days or until payment of the arrears of maintenance, whichever is earlier. The revision petitioner was the respondent and the 1[st] respondent was the petitioner in the execution application. 2. The revision petitioner 's case is that, the 1[st] respondent had filed M.C.64/2020 under Section 125 of the Code of Criminal Procedure (in short, 'Code') for an order of maintenance. The Family Court, by order dated 21.03.2022, allowed the application directing the revision petitioner to pay the 1[st] respondent monthly maintenance allowance @ Rs.5,000/- (Rupees Five Thousand only) from the date of petition. The 1[st] respondent put the order to execution by filing the application under Section 128 of the Code, to recover the arrears of maintenance allowance amounting to Rs.1,40,000/- (i.e. Rs.5,000/- for the period RPFC NO. 265 OF 2023 3 from 06.02.2020 to 05.06.2022 (28 months)). The revision petitioner did not contest the application and the Family Court issued a distress warrant and, thereafter, passed the impugned order. The Family Court has failed to appreciate the fact that the 1[st] respondent is living in adultery and that the execution petition is time barred as it is filed beyond the one year time period prescribed under the first proviso to sub section (3) of Section 125 of the Code. The Family Court has also failed to consider the fact that the revision petitioner is struggling to maintain his parents and minor son. The impugned order is improper, irregular and illegal. Hence, the revision petition. 3. Heard; Sri.K Aboobacker Sidheeque, the learned counsel appearing for the revision petitioner; Sri.Shakthi Prakash the learned counsel appearing for the 1[st] respondent and Smt.Seetha S., the learned Senior Public Prosecutor appearing for the 2[nd] respondent-State. 4. Is there any error or impropriety in the impugned RPFC NO. 265 OF 2023 4 order? 5. The 1[st] respondent's application for maintenance filed under Section 125 of the Code was allowed by the Family Court on 21.03.2022 directing the revision petitioner to pay the 1[st] respondent monthly maintenance allowance @ Rs.5,000/- from the date of petition (06.02.2020). The revision petitioner has not challenged the order and the same has attained finality. 6. Admittedly, the revision petitioner has failed to pay the ordered amount and the 1[st] respondent filed the execution application to recover Rs.1,40,000/- i.e., arrears of maintenance for 28 months. the revision petitioner did not contest the execution application and the Family Court ordered distress warrant against him under the first proviso to sub-section (3) of Section 125 of the Code. It was found that the revision petitioner has only a fractional share in a joint family property which is in-sufficient to recover the arrears of maintenance. Consequently, the Family Court issued a non-bailable warrant against the RPFC NO. 265 OF 2023 5 revision petitioner and he was arrested. 7. The Family Court, following the principles laid down by a Division Bench of this Court in **Sunil Kumar v.** **Jalaja and Another** [2007 (1) KLT 877 (DB)] and a learned Single Judge in **Gopika M.v. A.T.Stalin** [2014(4) KLT 907], sentenced the revision petitioner to undergo imprisonment in civil prison for a period of 15 days for each month's default (that is 15 days X 28 months arrears) i.e., for a period of 420 days. 8. It is this order, that is challenged in the revision petition. 9. The revision petitioner's cardinal contentions are: - i) The execution application is time barred. ii) The Family Court has failed to consider that the revision petitioner has to maintain his parents and minor son. iii) The 1[st] respondent is living in adultery. RPFC NO. 265 OF 2023 6 iv) The order passed is in violation to the proviso to subsection (3) of Section 125 of the Code. 10. Section 125 of the Code reads as follows: (1) If any person having sufficient means neglects or refuses to maintain; (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct; **Provided** that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. **Provided further** that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this Sub-Section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person RPFC NO. 265 OF 2023 7 as the Magistrate may from time to time direct; **Provided also** that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. For the purposes of this Chapter, a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority; b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (3) 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 port of each month’s allowance allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be 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 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. (4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or RPFC NO. 265 OF 2023 8 if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. 10. The first proviso to sub-section (3) of Section 125 stipulates that the execution application is to be filed within one year from the date of maintenance allowance has fallen due. 11. In the present case, although the maintenance application was filed in 2020, the same was only allowed on 21.03.2022, ordering the revision petitioner to pay maintenance to the 1[st] respondent from the date of petition (06.02.2020). The 1[st] respondent filed the execution application on 05.06.2022, i.e., within three months from the date of order, to recover the arrears of maintenance allowance for a period of 28 months. Hence, the 1[st] respondent has filed the execution application well within the prescribed period of one year from the date of the maintenance allowance fell due. Therefore, the revision petitioner's contention that the application is time RPFC NO. 265 OF 2023 9 barred is untenable and unacceptable, and is only to be rejected. 12. Now coming to the revision petitioner's other contention that, he has to maintain his parents and son and that the 1[st] respondent is living in adultery are also unsustainable in law in an application filed under Section 128 of the Code. The said contentions had to be raised in the maintenance application and not in execution. Moreover, the revision petitioner has not contested the execution application and has failed to file any counter affidavit to the applications. Thus, it is too late in the day for him to raise the said defence for the first time in the revision petition. Therefore, the said contentions have to also be summarily rejected. 13. The revision petitioner's last contention that the Family Court has not complied with the proviso to Section 125 (3) of the Code is also incorrect because the records reveal that a distress warrant was issued to the revenue authorities and it was found that the revision petitioner RPFC NO. 265 OF 2023 10 does not have sufficient property to pay the arrears of maintenance. Accordingly, the Family Court issued a warrant of arrest against the revision petitioner, for his personal execution. 14. In the light of the above findings, this Court is of the firm view that there is no or error, illegality impropriety in the impugned order passed by the Family Court, warranting interference by this Court under Section 19(4) of the Family Courts Act. Nevertheless, to afford the revision petitioner an opportunity to show his bonafides and also taking a lenient view in the matter, I am of the view that on the revision petitioner paying one half of the arrears he can be ordered to be released from the prison, subject to conditions. ## In the result, - (i) The revision petition is dismissed, by confirming the order in CMP (Ex.) No.166/2022. - (ii) The revision petitioner shall be released from the civil prison as and when he pays half the arrears of RPFC NO. 265 OF 2023 11 maintenance in CMP(Ex.) No.166/2022 and undertakes to pay the remaining amount within 30 days from the date he makes the first payment, after executing a bond with two solvent sureties for the balance amount due in the execution application. - (iv) If any amount is deposited, the same shall be released to the 1[st] respondent, in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc/02.11.23