IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 Crl.MC.No. 1240 of 2010(D) --------------------------------- (C.M.P.NO. 207/2009 IN MC.175/2005 of FAMILY COURT, THIRUVALA) .................... PETITIONER(S): ------------------- SUBRAMANIYA PILLAI, AGED 48 YEARS, S/O.PARAMESWARAN PILLAI, KONNAKKALIL VEEDU, AZHOOR MURI, PATHANAMTHITTA. BY ADVS. SRI. K.SHAJ SRI.K.N.RADHAKRISHNAN(THIRUVALLA) SRI. S. SAJJU RESPONDENT(S): -------------------- 1. AJITHAKUMARY, AGED 37 YEARS, D/O.RAMAKRISHNA PILLAI,KALLARATHEKKATHIL VEEDU, VELLAPPARA P.O., KONNI VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA. 2. AKHIL (MINOR) AGED 14 YEARS, KALLARATHEKKATHIL VEEDU, VELLAPPARA P.O. KONNY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA, REPRESENTED BY THE FIRST RESPONDENT. 3. ANJU(MINOR) AGED 12 YEARS, KALLARATHEKKATHIL VEEDU, VELLAPPARA P.O., KONNY VILLAGE, KOZHENCHERRY TLAUK, PATHANAMTHITTA REPRESENTED BY THE FIRST RESPONDENT 4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 TO R3 BY ADV. SMT.ASHA CHERIAN R4 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1240 of 2010 -------------------------- ORDER Maintenance was granted by Family Court, Thiruvalla in M.C.No.175/2005 in favour of respondents 1 to 3. They filed Annexure-A1 petition (C.M.P.No.207/2009) under Section 128 of Code of Criminal Procedure to issue warrant for realisation of the maintenance for the period from 26.7.2006 to 26.7.2007. By Annexure-A3 order Family Court passed an order initiating revenue recovery proceedings through District Collector stating that though respondents, petitioners before the Family Court, were present, petitioner, the counter petitioner, was absent. This petition is filed to quash Annexure-A3 order contending that in view of the first proviso to sub-section (3) of Section 125 of Code of Criminal Procedure, learned Judge should not have issued warrant for realisation of the amount beyond the period provided under the proviso CRMC 1240/10 2 and after receipt of the notice in Annexure-A1 petition, petitioner appeared and filed Annexure-A2 objection raising this contention, but, it was not considered by the learned Judge. 2. Learned counsel appearing for the petitioner and respondents 1 to 3 were heard. 3. Annexure-A3 order shows that the order was passed as if petitioner/counter petitioner did not appear on service of notice in C.M.P.No.207/2009 and did not raise any objection. Annexure-A2 objection filed by the petitioner shows that on the day on which Annexure-A3 order was passed, petitioner filed an objection, inter alia, contending that in view of first proviso to sub- section (3) of Section 125 of Code of Criminal Procedure, petition will not lie. Unfortunately, Family Court did not consider the objection. 4. In such circumstances, Annexure-A3 order is quashed. C.M.P.No.207/2009 is remanded to the Family Court for passing appropriate order in CRMC 1240/10 3 accordance with law, considering the contentions raised by the petitioner in Annexure-A2 objection, based on first proviso to sub-section (3) of Section 125 of Code of Criminal Procedure. Petition is disposed. 28th September, 2010 (M.Sasidharan Nambiar, Judge) tkv