IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 WP(C).No. 28920 of 2010(R) -------------------------- MC.229/2009 of FAMILY COURT, THIRUVALLA .................... PETITIONER: --------------- P.RADHAKRISHNAN, AGED 58 YEARS, S/O.NARAYANAN NAMPYATHIRI, PERUMPALLIL ELLATHU VEEDU, ANGADICKAL SOUTH MURI, ANGADICKAL VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. PIN CODE - 691 555. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SMT.AMBIKA RADHAKRISHNAN RESPONDENTS: --------------- 1. K.S.PUSHPAKUMARI,W/O.P.RADHAKRISHNAN, PERUMPALLIL ELLATHU VEEDU, ANGADICKAL SOUTH MURI, ANGADICKAL VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT, PIN CODE - 691 555. 2. P.R.DEVIKA (MINOR), D/O.K.S.PUSHPAKUMARI,PERUMPALLIL ELLATHU VEEDU, ANGADICKAL SOUTH MURI, ANGADICKAL VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT, PIN CODE - 691 555. (MINOR IS REP. BY THE IST PETITIONER, THE MOTHER) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.28920 of 2010R - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of September, 2010 JUDGMENT Basant J., The petitioner has suffered an order under Section 125 Cr.P.C. by consent and the same was obliged him to pay an amount of Rs.800/- towards wife and Rs.700/- towards minor child per mensem, under Section 125 Cr.P.C. That order has not been complied with and a petition for execution has been filed by the wife and the minor child. The court below has ordered notice to the petitioner herein. 2. According to the petitioner, there is no wilful default on his side. He has come up with the theory that there has been a subsequent oral agreement between the parties and that consequently, there is no wilful default on his part. The petitioner apprehends that the court below may not give him W.P.(C) No.28920 of 2010R 2 opportunity to establish that there is no wilful default and may proceed to issue cohesive process and may eventually send him to prison, without giving him an opportunity to show cause why cohesive steps in execution should not be taken against him. 3. As the petitioner filed an objection incorporating his contentions, did he claim an opportunity before the court below to prove that there was no wilful default on his part? Admittedly no steps have been taken by him to communicate the court the defence, that he wants to put up that there is no wilful disobedience on the direction of payment of maintenance under Section 125 Cr.P.C. 4. We have no reason to admit that if the petitioner has such a contention and want to raise such a contention the Family Court will proceed to pass orders adverse to the petitioner without considering such contentions. It is to the petitioner to appear before the court below and raise his contentions, in a manner known to law. If such contentions are raised, needless to say that the court below will have to W.P.(C) No.28920 of 2010R 3 consider and pass appropriate orders. 5. With the above observations, this Writ Petition is dismissed. 6. Hand over a copy of this order to the learned counsel for the petitioner for immediate production before the Family Court. R. BASANT, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/