IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 WP(C).No. 36401 of 2009(R) -------------------------- CMP.358/2009 of FAMILY COURT,KOZHIKODE .................... PETITIONER: --------------- LATHEEF, S/O.HAMSA, MATTUMMAL HOUSE, PANTHEERANKAVU P.O., KOZHIKODE. BY ADV. SMT.K.A.ANGEL TREENA SMT.ARLISS TRENCY ANTONY RESPONDENTS: --------------- 1. RUKHIYA, W/O.LATHEEF, PULPARAMBIL HOUSE, PATTEL THAZHAM, PERACHI KUNNU ROAD, P.O.POKKUNNU, KOZHIKODE. 2. ABDUL SAMAD, S/O.LATHEEF, PULPARAMBIL HOUSE, PATTEL THAZHAM, PERACHI KUNNU ROAD, P.O.POKKUNNU, KOZHIKODE. 3. ASHARAF, S/O.LATHEEF, PULPARAMBIL HOUSE, PATTEL THAZHAM, PERACHI KUNNU ROAD, P.O.POKKUNNU, KOZHIKODE. 4. YOUSUF, S/O.LATHEEF, PULPARAMBIL HOUSE, PATTEL THAZHAM, PERACHI KUNNU ROAD, P.O.POKKUNNU, KOZHIKODE. 5. STATE OF KERALA, REP. BY GOVT. PLEADER, HIGH COURT OF KERALA, ERNAKULAM. GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(C) No.36401 of 2009 ------------------------------------- Dated this the 16th day of December, 2009 JUDGMENT BASANT, J. The petitioner has suffered an exparte order obliging him to pay maintenance under Section 125 Cr.P.C to his wife and 3 minor children. Altogether he has to pay an amount of Rs.3,000/- per mensem to all the 4 claimants. The exparte order has become final and admittedly there is no attempt to challenge the exparte order. To execute the said order under Section 125 Cr.P.C, the claimants - wife and minor children have initiated proceedings in execution. A total amount of Rs.54,000/- is due, it is conceded. Towards this, an amount of Rs.4,000/- has already been paid. The balance of Rs.50,000/- is still due admittedly. On payment of Rs.4,000/- towards the liability, the Family Court had adjourned the Execution Petition. But when the Execution Petition came up for hearing on the next date of posting, the petitioner was not present and this obliged the learned Magistrate to issue coercive processes against the petitioner. The petitioner finds such processes chasing him. W.P(C) No.36401 of 2009 2 2. Instead of appearing before the Family Court and requesting the court to withdraw the warrant of arrest issued against him and accept his prayer to receive part payment of the amount, which the petitioner claims he is willing to make, the petitioner has rushed to this Court with this petition under Article 226 of the Constitution of India. 3. We do not find any reason to invoke the extraordinary constitutional jurisdiction under Article 227 of the Constitution of India. It is for the petitioner to appear before the Family Court, deposit substantial portion of the amount due and request the learned Judge not to sentence him to imprisonment without giving him further time to make the payment. We have no reason to assume that the Family Court shall not consider the said request on merits, in accordance with law and with sympathy and concern. The petitioner will have to show his bona fides by depositing substantial portion of the amount due to persuade the Court to invoke its discretion not to sentence him straight away and to give him further time to discharge the liability. If such an application is made, needless to say, the learned Judge of the Family Court shall have to consider the same on merits and in accordance with law. W.P(C) No.36401 of 2009 3 4. With the above observations, this Writ Petition is dismissed. 5. Hand over a copy of this judgment to the learned counsel for the petitioner for production before the learned Judge of the Family Court. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-