IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Crl.MC.No. 1739 of 2008() ------------------------- CMP 143/07 IN MC.707/2005 OF THE FAMILY COURT, MALAPPURAM .................... PETITIONER: RESPONDENT: ----------------------- V.P.JYOTHI KUMAR, AGED 32 YEARS, S/O.GOVINDAN, VADAKKEPARAMBIL HOUSE, MANASSERY P.O., KOZHIKODE DISTRICT. BY ADV. SRI.K.M.FIROZ RESPONDENTS: PETITIONERS 1 & 2/STATE: ------------------------------------- 1. SARMILA.P., D/O.KUNHIKUTTAN, AGED 27 YEARS, PULLOOR HOUSE, AKKARAPARAMBU P.O., VIA.KUZHIMANNA, MALAPPURAM DISTRICT. 2. ADARSH, S/O.JYOTHI KUMAR, AGED 6 YEARS, REPRESENTED BY HIS MOTHER SARMILA 1ST RESPONDENT HEREIN D/O.KUNHIKUTTAN, AGED 27 YEARS, PULLOOR HOUSE, AKKARAPARAMBU P.O., VIA.KUZHIMANNA, MALAPPURAM DISTRICT. 3. THE STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, MUKKAM POLICE STATION KOZHIKODE. BY ADV. SRI.R.RAJESH KORMATH FOR R1 & 2 R3 BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 1739 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of August, 2008 O R D E R The petitioner has suffered an order under Section 125 Cr.P.C. obliging to pay maintenance to the claimants – his wife and minor child. He did not comply with the order directing payment of maintenance and in these circumstances the claimants approached the Family Court for execution of the order passed under Section 125 Cr.P.C. The learned Judge of the Family Court issued distress warrant, which has not been executed so far. The petitioner remained absent before the Family Court and in these circumstances the Family Court has issued a non- bailable warrant to arrest the petitioner. 2. The learned counsel for the petitioner argues that a sentence under Section 125(3) Cr.P.C. can be imposed on the petitioner only after execution of the distress warrant and if the order for maintenance remains undischarged even after execution of such distress warrant. There can be no dispute regarding that Crl.M.C.No. 1739 of 2008 2 proposition. Section 125(3) Cr.P.C. is crystal clear on that aspect. A sentence can be imposed only if the amount remains 'unpaid' after execution of the warrant. 3. The learned counsel for the respondent submits that because of the interim stay granted, no further proceedings are being pursued by the Family Court. In these circumstances it is submitted that this petition may be disposed of making it clear that only after the distress warrant is returned need the Family Court proceed to pass any order imposing a sentence under Section 125(3) Cr.P.C. The learned counsel for the respondent only prays that the Family Court may be directed to expeditiously ensure execution of the distress warrant and the proceedings may not be kept in abeyance endlessly. I am satisfied that this petition can now be allowed with specific direction regarding expeditious execution of the warrant for recovery of the amount. 4. This Crl.M.C. is allowed. It is made clear that a sentence can be imposed on the petitioner under Section 125(3) Cr.P.C. only if the amounts remain unpaid after execution of the distress warrant for levying amount. But the Family Court must ensure that the execution Crl.M.C.No. 1739 of 2008 3 of the distress warrant takes place immediately. If there be any interim orders passed by the civil court in the dispute between the petitioner and his father making it impossible for the court to proceed against the property of the petitioner, the revenue authorities shall forthwith return the distress warrant with such endorsement and thereupon it shall be open to the learned Judge of the Family Court to proceed to the next step holding that the amount remains unpaid. (R. BASANT) Judge tm