Omanakuttan vs Sulekha P.C

Dr. Kauser Edappagath, J

This original petition has been filed challenging the arrest warrant issued by the Family Court, Thiruvalla (for short 'the court below') against the petitioner under section 125(3) of Cr.P.C.

The petitioner is the husband of the 1st respondent and father of the 2nd respondent. The court below in MC No. 341/2003 directed the petitioner to pay maintenance to the 1st respondent @`1,200/- per month and the 2nd respondent @`800/- per month as per the order dated 13/8/2003. Thereafter, the 1st and 2nd respondent filed CMP No.50/2016 under section 125(3) of Cr.P.C. to execute the order dated 13/8/2003 in MC No.341/2003 and to recover the arrears of maintenance for the period from 13/7/2004 to 13/8/2016. The total amount claimed was ₹2,90,000/-. The court below initially issued distress warrant against the petitioner. Thereafter, the court below issued arrest warrant against the petitioner as per the order dated 16/1/2007. This original petition has been filed challenging the arrest warrant issued by the court below.

I have heard Smt.S.Rekha, the learned senior Public Prosecutor and Sri.K.N.Radhakrishnan (Thiruvalla), the learned counsel for the 1st respondent.

The 1st and 2nd respondent filed execution petition to recover maintenance amount for a period of 12 years ie from 13/7/2004 to 13/8/2016. Relying on the proviso to sub-section (3) of Section 125, the learned counsel for the petitioner submitted that unless the application for execution is filed within a period of one year from the date on which it becomes due, no warrant could be issued for the recovery of amount. The counsel further submitted that since the 1st and 2nd respondent sought to recover maintenance for a period of 12 years, the court below ought not have issued arrest warrant.

Proviso to sub-section (3) of section 125 makes it clear that no warrant shall be issued for the recovery of any amount due under sub section (1) of section 125 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. The detention of defaulter in custody would not be available to a claimant who had slept over rights and has not approached the court within a period of one year commencing from the date on which the entitlement to receive maintenance has accrued (See Poongodi and Another v. Thangavel 2013 KHC 4784). However, here is a case where the wife as well as the minor daughter of the petitioner sought enforcement of maintenance order under section 125(3) for a period beyond one year. A minor is one who is considered as a legally disabled person to sue or to be sued independently during the period of minority. Even though proviso to sub-section (3) of section 125 mandates that unless the application is made to realise the maintenance arrears within a period of one year, no warrant could be issued for recovery of the same, a minor maintenance holder would get protection of legally disabled person for filing the execution petition to realise the arrears of maintenance for a period beyond one year. In other words, so long as the minor has not attained majority, there can be no limitation for the enforcement of maintenance due under section 125(3) of Cr.P.C (See Benny Varghese v. Siby P. Kuruvilla, 2014 (1) KLT 93). Thus, though the claim for maintenance filed by the 1st respondent beyond one year is not maintainable, the claim for maintenance by the 2nd respondent is perfectly maintainable since she has not attained majority. The court below is entitled to proceed legally against the petitioner for realisation of entire maintenance arrears due to the 2nd respondent and for realisation of maintenance arrears for a period of one year preceding to the filing of the CMP due to the 1st respondent. A modified warrant shall be issued accordingly.

The original petition is disposed of as above.