Compliance with maintenance orders and timely execution applications are critical; defenses not raised in initial proceedings cannot be asserted later in execution applications.

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 1st respondent was the petitioner in the execution application.

2. The revision petitioner 's case is that, the 1st 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 1st respondent monthly maintenance allowance @ Rs.5,000/- (Rupees Five Thousand only) from the date of petition. The 1st 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 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 1st 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 1st respondent and Smt.Seetha S., the learned Senior Public Prosecutor appearing for the 2nd respondent-State.

4. Is there any error or impropriety in the impugned order?

5. The 1st 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 1st 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 1st 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 revision petitioner and he was arrested.

7. The Family Court, following the principles laid down by a Division Bench of this Court inSunil Kumar v. Jalaja and Another [2007 (1) KLT 877 (DB)] and a learned Single Judge inGopika 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 1st respondent is living in adultery.

iv) The order passed is in violation to the proviso to sub-

section (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 r