IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36401 of 2009(R)
1. LATHEEF, S/O.HAMSA,
... Petitioner
Vs
1. RUKHIYA, W/O.LATHEEF,
... Respondent
2. ABDUL SAMAD, S/O.LATHEEF,
3. ASHARAF, S/O.LATHEEF,
4. YOUSUF, S/O.LATHEEF,
5. STATE OF KERALA,
For Petitioner :SMT.K.A.ANGEL TREENA
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :16/12/2009
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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W.P(C) No.36401 of 2009
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Dated this the 16th day of December, 2009
JUDGMENT
BASANT, J.
The petitioner has suffered an exparte order obliging him
to pay maintenance under Section 125 Cr.P.C to his wife and 3
minor children. Altogether he has to pay an amount of
Rs.3,000/- per mensem to all the 4 claimants. The exparte order
has become final and admittedly there is no attempt to challenge
the exparte order. To execute the said order under Section 125
Cr.P.C, the claimants – wife and minor children have initiated
proceedings in execution. A total amount of Rs.54,000/- is due, it
is conceded. Towards this, an amount of Rs.4,000/- has already
been paid. The balance of Rs.50,000/- is still due admittedly. On
payment of Rs.4,000/- towards the liability, the Family Court had
adjourned the Execution Petition. But when the Execution
Petition came up for hearing on the next date of posting, the
petitioner was not present and this obliged the learned
Magistrate to issue coercive processes against the petitioner.
The petitioner finds such processes chasing him.
W.P(C) No.36401 of 2009 2
2. Instead of appearing before the Family Court and
requesting the court to withdraw the warrant of arrest issued
against him and accept his prayer to receive part payment of the
amount, which the petitioner claims he is willing to make, the
petitioner has rushed to this Court with this petition under
Article 226 of the Constitution of India.
3. We do not find any reason to invoke the extraordinary
constitutional jurisdiction under Article 227 of the Constitution
of India. It is for the petitioner to appear before the Family
Court, deposit substantial portion of the amount due and request
the learned Judge not to sentence him to imprisonment without
giving him further time to make the payment. We have no
reason to assume that the Family Court shall not consider the
said request on merits, in accordance with law and with
sympathy and concern. The petitioner will have to show his bona
fides by depositing substantial portion of the amount due to
persuade the Court to invoke its discretion not to sentence him
straight away and to give him further time to discharge the
liability. If such an application is made, needless to say, the
learned Judge of the Family Court shall have to consider the
same on merits and in accordance with law.
W.P(C) No.36401 of 2009 3
4. With the above observations, this Writ Petition is
dismissed.
5. Hand over a copy of this judgment to the learned
counsel for the petitioner for production before the learned
Judge of the Family Court.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
rtr/-