IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 OP (FC).No. 2679 of 2011(R) ----------------------------------------- EP.91/2010 of FAMILY COURT, THIRUVANANTHAPURAM. .................... PETITIONER: ------------------- SREEKUMAR. K.G., SREERAGAM VEETTIL, VENPAKAL. P.O.,THIRUVANANTHAPURAM. BY ADV. SRI.R.SUDHEESHKUMAR, SRI.SUNIL KUMAR A.G. RESPONDENT(S): ------------------------- 1. REMAPRABHA, D/O.SARASWATHY AMMA, SARASWATHY MANDIRAM, VENPAKAL. P.O., THIRUVANANTHAPURAM-695 123. 2. SREEKUTTAN @ AMAL KRISHNAN, SARASWATHY MANDIRAM, VENPAKAL. P.O., THIRUVANANTHAPURAM-695 123. 3. SREEKUTTY, SARASWATHY MANDIRAM, VENPAKAL.P.O.,THIRUVANANTHAPURAM-695 123. BY THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP (FC).No. 2679 of 2011(R) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE EXECUTION PETITION NO.91/2010. EXT.P2: COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.P. NO.91/2010. EXT.P3: COPY OF THE B. DIARY IN EXECUTION PETITIONS AND B. DIARY IN E.A. NO.128/11. EXT.P4: COPY OF THE NOTICE ISSUED BY THE VENPAKAL SERVICE CO- OPERATIVE BANK LTD. T.155 DATED 24/02/2011. EXT.P5: COPY OF THE NOTICE ISSUED BY AVANAKUZHY SERVICE CO-OPERATIVE BANK LTD NO.2387 DATED 24/02/2011. EXT.P6: COPY OF THE NOTICE ISSUED BY THE CANARA BANK, KAMUKINKODE BRANCH ON 15/06/2011. EXT.P7: COPY OF THE NOTICE ISSUED BY NELLIMOODU SERVICE CO-OPERATIVE LTD. NO.2639 DATED 24/02/2011. EXT.P8: COPY OF THE NOTICE ISSUED BY NELLIMOODU SERVICE CO-OPERATIVE LTD. NO.2639 DATED 24/02/2011. EXT.P9: COPY OF THE NOTICE ISSUED BY THE CANARA BANK ON 31/01/2011. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE rs Thottathil B.Radhakrishnan & K.Surendra Mohan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = OP(FC).No.2679 of 2011-R = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of August, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.The petitioner is the judgment debtor in an order for maintenance granted by the Family Court in favour of the wife and two children. Though the petitioner says that the impugned order has been issued without considering his objections as to lack of means to satisfy the decree, we are of the view that this not being an appeal or a statutory revision, but an application under Article 227 of the Constitution, interference would be, only if injustice, beyond mere illegality, is established. 2.With the aforesaid in view, we see that the execution proceedings is on the basis of a decree passed on 30.6.2003. The rate of maintenance OPFC.2679/11 -: 2 :- granted to the wife is Rs.5,00/-(Rupees five hundred only) per month and to the two children at the rate of Rs.250/-(Rupees two hundred and fifty only) each per month. The execution petition was filed in 2010 and taken on record on 31.8.2010. Ext.P3 B.Diary shows that from 19.11.2010, the date of first posting of the execution petition, the matter was dragged on upto 12.4.2011 on different grounds of attempt to settlement, mediation, adalath, conciliation etc. The Family Court also gave the husband, an opportunity to pay off the arrears in 10 installments. Yet, he did not pay. He would rather take shelter under the plea that he owes money to different financial institutions, including banks, co-operative societies etc. under different loan transactions. 3.The wife has filed an affidavit before the court below asserting that the husband has the means to satisfy the decree. Once that is on board, the burden of proof is on the judgment debtor to show OPFC.2679/11 -: 3 :- that he does not have the means to pay and that he is not keeping away from making payments in spite of having the means to pay. While the husband, the petitioner herein, accuses the court below of not having given an opportunity to do that, his plea, on facts, is only that he is now a daily rated watchman and has to pay the outstandings due under the loan accounts. If we borrow the legislative wisdom contained in Section 60(1)(i) of the Code of Civil Procedure, there is no protection even under that provision, if the attachment of salary is in execution of a decree for maintenance. This legislative material is sufficient indication of the principles of law emanating from the legislations, under the gaze of the Constitutional values, that the wife and children in a family cannot be forced to suffer perilous situations depending on the vagaries of the husband's management of his income. Not only that, while it relates to the execution of a decree for maintenance, when it is shown that the judgment debtor is employed at least casually, it OPFC.2679/11 -: 4 :- stands to reflect his ability, bodily, to work, earn and pay to the wife and children, the maintenance due in terms of a lawful decree. 4.With all the aforesaid, we are inclined to accede, to some extent, to the indulgence sought for by the husband, the petitioner herein, that he may be granted opportunity to pay off the outstandings in a phased manner. The arrears on account of the maintenance liability towards the children works out to Rs.45,000/- by now. Hence, keeping aside the wife's claim for the time being, we adjourn the execution of any warrant on the basis of the impugned order/proceedings for a period of 100 days on condition that the petitioner remits before the court below, without fail, amounts at the rate of Rs.15,000/- per month on or before the 6th of every month commencing from September, 2011. On failure to remit any such installment, this judgment will stand recalled automatically and the court below will be at liberty to forthwith execute the OPFC.2679/11 -: 5 :- warrant of arrest and detention. Amounts remitted in terms of this order can be received by the wife on behalf of the minor children on appropriate application before the court below. If all the remittances are so made in terms of the aforesaid directions, the court below will adjourn the execution of the warrant from time to time for a further period of four months to enable the judgment debtor to satisfy the remaining part of the decree by making remittances as may be fixed by the court below for each of such posting and adjournment. The original petition is ordered accordingly. Thottathil B.Radhakrishnan, Judge. K.Surendra Mohan, Judge. Sha/2508