IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 5^TH DAY OF APRIL 2023 / 15TH CHAITHRA, 1945 OP(CRL.) NO. 56 OF 2022 (IN CMP. NO.138 OF 2021 IN M.C.29 OF 2018 ON THE FILES OF HON'BLE FAMILY COURT, VADAKARA)

PETITIONER/RESPONDENT IN CMP AND M.C:

BELBITH, AGED 41 YEARS S/O. VASU, ‘SWATHI’, KARAPIDATHAZHA HOUSE, ULLIYERI, KOZHIKODE - 673323 BY ADV K.M.FIROZ RESPONDENTS / PETITIONERS IN CMP AND M.C . :

1 SHIMLA, AGED 37 YEARS D/O. BALAN, ‘THEJAS’, VADAKKEDATH HOUSE, MODAKKALLUR POST, ATHOLI, KOZHIKODE – 673 323.

2 ALIDITTYA, AGED 9 YEARS (MINOR)

D/O. BELBITH, ‘THEJAS’, VADAKKEDATH HOUSE, MODAKKALLUR POST, ATHOLI, KOZHIKODE - 673323 REPRESENTED BY FIRST RESPONDENT MOTHER

3 ASHFAN FIDAN, AGED 6 YEARS (MINOR)

S/O. BELBITH, ‘THEJAS’, VADAKKEDATH HOUSE, MODAKKALLUR POST, ATHOLI, KOZHIKODE - 673323 REPRESENTED BY FIRST RESPONDENT MOTHER THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON

04.04.2023, THE COURT ON 05.04.2023 DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 5^th day of April, 2023.

This petition is filed under Article 227 of the Constitution of India seeking for the following reliefs:

(i) Call for the records leading to Exhibit P4 (CMP No.138 of 2021 in MC No.29 of 2018) on the files of the Hon'ble Family Court, Vatakara and declare that arrest warrant is not liable to be issued against the petitioner in CMP No.138 of 2021 in MC No.29 of

2018 and that the said petition is not maintainable.

(ii) Such other reliefs as this Honourable Court may be pleased to grant.

2. The petitioner herein is the respondent in MC No.

29/2018 on the files of Family Court, Vadakara. An order was passed by Family court under Section 125 (1) of the Criminal Procedure Code on 12.4.2019 wherein direction was issued to the petitioner to deposit Rs.3,000/- each in favour of respondents 1 to 3 as monthly maintenance allowance, from the date of the petition. Petitioner has pleaded in the petition that he has paid Rs.57,000/- towards arrears of monthly maintenance allowance stands ordered in the M.C. His grievance was that despite the payment made as above, the Family Court has issued warrant against him so as to compel him to make the payment outstanding.

3. The argument of the learned counsel for the petitioner was that the Family court is highly unjustified in issuing warrant against him in violation of the direction in the first proviso to sub-

section (3) of Section 125 (1) Cr.P.C.

4. The respondents though served with notice, did not appear before this Court.

5. The first proviso to sub-section (3) of Section 125 (1) is relevant in this context and is extracted hereunder:-

“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 part of each month' s [allowance for the maintenance or the interim maintenance and expenses of proceedings 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:”

6. The petitioners herein had approached this court alleging that the respondent failed to comply with the direction in the order granting maintenance allowance and in such a circumstance, the Family court is empowered to issue warrant for levying the amount defaulted as if it is a fine imposed and shall sentence such person for the whole or any part of each month's allowance for maintenance or interim maintenance remaining unpaid and also expenses of the proceeding.

7. Therefore, a party in whose favour maintenance allowance stands awarded finally or as an interim measure, shall, in case of def