IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 WP(C).No. 11759 of 2009(R) -------------------------- MC.74/2003 of FAMILY COURT,KOZHIKODE .................... PETITIONER(S)/RESPONDENT: --------------- AHAMMED KOYA, REPRESENTED BY GUARDIAN BROTHER LIYAKATYH ALI, S/O. LATE MUHAMMED, PAROLIL HOUSE, THANNICHAL, PERUMUGHAM P.O., KOZHIKODE. BY ADVS. SRI.T.R.RAVI SRI.P.S.MURALI RESPONDENT(S)/PETITIONER: --------------- JUVAIRIA (MINOR), REPRESENTED BY MOTHER E. SAJITHA, D/O. MOHAMMED KOYA, EASAKKANTAKATH, V.P. HOUSE, FEROKE, NALLOOR 813, CHUNGAM, KOZHIKODE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- W.P.(C) NO. 11759 OF 2009 --------------------------------------------------------- Dated this the 7th day of April, 2009 JUDGMENT Basant, J. The petitioner has suffered an ex parte order under Section 125 Cr.P.C. obliging him to pay maintenance at the rate of Rs.1,000/- per mensem to his child. His divorced wife/mother of the child had staked the claim on behalf of the minor child. That ex parte order remains unchallenged. 2. Instead of challenging the ex parte order, the petitioner filed an application to modify the order passed under Section 125 Cr.P.C. invoking the power under Section 127 Cr.P.C.. The contention raised was that the petitioner was mentally ill and a criminal court in proceedings under Section 498 A Cr.P.C. has accepted the petitioner's contention that he is mentally ill. The application for modification of the order under Section 127 Cr.P.C. has been dismissed. That order has now become final. There is no challenge against that order also. 3. The minor child has claimed execution of the order. For one W.P.(C)NO. 11759/2009 2 specific period, an application was filed and in that application, the entire amount was paid and that application was closed. The counsel for the petitioner submits that his brother in his anxiety to avoid incarceration of the petitioner had paid the amount to purchase peace. For a later period, the order under Section 125 Cr.P.C is sought to be enforced now. Warrant of arrest has been issued. At this juncture, the petitioner has come to this Court with this Writ Petition. 4. What is his grievance? According to the petitioner, warrant of arrest has been issued against him. He should approach the Family Court and raise his grievance under Section 125(3) Cr.P.C. that he is not liable to be sentenced and sent to prison as he is mentally sick and there is no wilful default. 5. Without expressing any opinion on merits, we need only mention that it is for the petitioner to appear before the Family Court, Kozhikode and raise whatever defence he wants to raise under Section 125(3) Cr.P.C.. We need only mention that the learned Judge of the Family Court must consider the plea which the petitioner wants to raise under Section 125(3) Cr.P.C. and pass appropriate order on merits. Needless to say, the petitioner may have to explain to the Family Court why the earlier orders under Section 125 Cr.P.C. and Section 127 Cr.P.C. remain unchallenged. The petitioner shall be at liberty to raise all the relevant contentions before W.P.(C)NO. 11759/2009 3 the Family Court and no observation in this order would fetter the right of the petitioner to raise all relevant contentions under Section 125(3) Cr.P.C. before the Family Court. 6. Counsel for the petitioner undertakes that the petitioner shall appear/shall be produced before the Family Court on 20.4.2009, i.e. on the next date of posting. We direct that the warrant of arrest issued against the petitioner shall not be executed till 20.4.2009. This, we direct, accepting the undertaking that the petitioner shall appear before the Family Court on that day. 7. This Writ Petition is accordingly dismissed with the above observation. 8. Hand over a copy of this judgment to the learned counsel for the petitioner for production before the Family Court, Kozhikode. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.P.(C)NO. 11759/2009 4 R. BASANT & C.T. RAVIKUMAR, JJ. W.P.(C) NO. 11759/2009 JUDGMENT 7th April, 2009 W.P.(C)NO. 11759/2009 5