Anil vs Hema P.R, Aathira, Amritha and State of Kerala

T.R. Ramachandran Nair, J.—Challenge is against the order passed by the Family Court, Irinjalakuda in M.P. No. 123/2012 in a petition to recall warrant issued against the petitioner. Heard both sides.

Learned counsel for the petitioner submits that after the petitioner entered appearance before the Family Court, Thrissur, the case was transferred to the Family Court, Irinjalakuda and re-numbered as M.P. No. 40/2012. But without knowing the transfer of the case, the petitioner appeared before the Family Court, Thrissur on 12-7-2012. But on the same day the Family Court, Irinjalakuda issued a warrant against the petitioner. Thereafter, two petitions were filed; one for advancing the hearing from 16-8-2012 and the other is to recall the arrest warrant. The petitioner had also sent a sum of Rs. 10,000/- by Money Order to the respondents. But the petition was dismissed by the impugned order.

This Court while admitting the Crl. M.C., by interim order dated 17-8-2012 directed the petitioner to deposit Rs. 10,000/- towards arrears of maintenance within a period of two weeks before the Family Court. There was a further direction that if the amount is deposited, it shall be released to the 1st respondent. It is submitted by the learned counsel for the petitioner that direction has been complied with.

The only question is whether before issuing a warrant the petitioner is to be granted an opportunity. Learned counsel for the petitioner relied upon a decision of this Court in Abdulrahiman Vs. State of Kerala, .

Learned counsel for the respondents submits that the petitioner is bound to comply with the order granting maintenance and, therefore, there are no bona fides in the objection raised by the petitioner. This Court in paragraph 12 of the above decision considered the provision u/s 125(3) Cr.P.C. For easy reference, paragraph 12 of the above decision is extracted hereunder:-

Where any person, who was bound to pay maintenance by order of the court fails to do so, in the absence of sufficient cause for non-compliance of such order, the court may sentence such person for the whole or for the allowance remaining unpaid for a term which may extend to one month or until payment is made. However, such sentence of imprisonment is imposed against such a person only after issuing a distraint warrant for levying the amount due as arrears of maintenance in the manner provided for realisation of fine. Even before the issue of such a warrant, if we go through the above provision, the Magistrate (Judge) has to consider the question whether he has any sufficient cause for non-compliance of the order. In the previous Code, Act V of 1890, till the substitution by Act XVIII of 1923, sub-s. (3) of S. 488, which corresponds to sub-s.(3) of S. 125 of the present Code, such sentence of imprisonment on a defaulting person, who was ordered to pay maintenance could have been imposed only where it was shown that he had ''wilfully neglected'' to comply with the order. But, after the substitution made under Act XVIII or 1923, "failure without sufficient cause, to comply with the order" by such person is sufficient to proceed with further steps, which, no doubt, has to commence with the issue of a distraint warrant for the sum due as arrears of maintenance, as if it were a fine, and if it fails, then alone imposing on him a sentence of imprisonment, having regard to the period for which maintenance is in arrears.

It will show that in the absence of sufficient cause for non-compliance of the order, the court may sentence such person for the whole or for the allowance remaining unpaid for a term which may extend to one month or until payment is made. But such sentence of imprisonment can be imposed only after issuing a distraint warrant for levying the amount due as arrears of maintenance. Even before issue of such warrant, the Magistrate has to consider the question whether such person has any sufficient cause for non-compliance of the order. In paragraph 14 this Court further held that section 125(3) does not contemplate of imposing a punishment of imprisonment straight away against the defaulter on his failure to pay the maintenance ordered. The next sentence is also relevant, which reads as follows:-

Not only that, the court has to issue a distraint warrant for realization of the arrears of maintenance due before imposing sentence of imprisonment against the defaulter, both the issue of warrant and also imposition of sentence of imprisonment should be proceeded with another requirement as to satisfaction of the Magistrate/Judge that the defaulter who had been ordered to pay maintenance, has failed to do so.

In the light of the above, the party will have to give an opportunity to show sufficient cause and in the absence of showing cause, the court can proceed in terms of the provision. Herein in the absence of the petitioner on 12-7-2012, the warrant was issued for realization of Rs. 1,35,000/-. The petitioner has got a case that the amount paid as interim maintenance totaling to Rs. 26,000/- and the amount which he has forwarded by Money Order to the tune of Rs. 10,000/- have not been adjusted.

Having considered all the aspects, I am of the view that the petitioner will have to be given an opportunity in the matter. Learned counsel for the respondents submits that as father of the children, in the light of the order, the petitioner is bound to maintain the family and he has sufficient means. All those matters are to be considered by the Family Court. In the light of the legal position as declared in Abdulrahiman Vs. State of Kerala, , the impugned order is set aside and the matter is remitted to the Family Court for fresh consideration.

The parties will appear before the Family Court on 28-1-2013.