IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 29179 of 2008(S) -------------------------- MC.122/2004 of FAMILY COURT,ERNAKULAM .................... PETITIONER(S): --------------- E.N.KRISHNAKUMAR, AGED 39, S/O.NEELAKANDAN, ETTUMMAL HOUSE EZHYEEKKARA PO., NORTH PARAVOOR. BY ADV. SRI.D.AJITHKUMAR SRI.M.J.JOHNSON RESPONDENT(S): --------------- 1. JANCY, D/O.ABRAHAM, PULLUOARAMBU IYALATH HOUSE, VENNALA PO., PALARIVATTOM. R.AT, C/O.PRASTHEENA, LITTLE FLOWER GARDEN EDATHALA PO., POOKKATTUPPADY. 2. AMRUTHA, D/O.JANCY MINOR REP. BY HER MOTHER 1ST RESPONDENT DO.DO. 3. AMALA, D/O. JANCY DO.DO. ADV. SRI.BINDU SREEKUMAR FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ W.P(C) No.29179 of 2008 ------------------------------------- Dated this the 25th day of March, 2009 JUDGMENT BASANT, J. Petitioner has suffered an order under Section 125 Cr.P.C obliging him to pay maintenance to two children born to him, ie. respondents 2 and 3 herein. That order was passed on consent on the basis of a compromise petition dated 31.05.2006 produced as Ext.P1. Maintenance was liable to be paid @ Rs.750/- per mensem to the children from May, 2005. 2. According to the respondents, the petitioner did not pay the amounts due. In these circumstances, the respondents were obliged to approach the Family Court for execution of the order passed under Section 125 Cr.P.C. Amounts were paid piecemeal. According to the claimants, the entire amount has not been paid yet. According to the petitioner herein, he has paid the entire amounts due. The dispute is as to whether the entire amount due by way of maintenance, ie. @ Rs.1,500/- per mensem from May, 2005, has been paid or not. 3. According to the petitioner, the entire amount has been paid. The learned Judge of the Family Court without taking W.P(C) No.29179 of 2008 2 note of the same has issued coercive processes against the petitioner for recovery of the said amount. Though he had raised his contention, that disputed question of fact has not been resolved and warrant of arrest has been issued against him. It is at this juncture that the petitioner has come to this Court. 4. The report of the learned Judge was called for. The report of the learned Judge shows that till 06.03.09, as per the court's records, an amount of Rs.39,700/- (Rupees Thirty nine thousand seven hundred only) alone has been paid. That definitely indicates that more amounts are liable to be paid. According to the learned counsel for the petitioner, certain other payments have also been made though not through court. The counsel for the petitioner wants time to substantiate that contention before the Family Court. 5. We are satisfied that for a fair, just and proper disposal of the application for execution of the order under Section 125 Cr.P.C, the learned Judge of the Family Court must consider the contention whether the entire amount due has been paid and discharged and whether any amount is in arrears. To decide this, the learned Judge must give both sides opportunity to produce materials. Once such material is produced, that W.P(C) No.29179 of 2008 3 disputed question of fact will have to be resolved by the Family Court by passing a speaking order. 6. This Writ Petition is, in these circumstances, allowed in part. The parties are directed to appear before the Family Court on 06.04.2009. They shall on that day place before the Family Court all materials to show payment/discharge of the amounts due under Section 125 Cr.P.C. Thereafter the learned Judge shall decide by passing a speaking order whether any amount is in arrears and if so what that amount is and take appropriate further action as is necessary under law. It is further directed that such further orders must be passed within a period of 10 days from 06.04.09. If the petitioner or the respondent does not appear or does not place materials before court, appropriate orders on the basis of the materials available shall be passed by the Family Court. It is further directed that till such a decision is taken, no coercive steps shall be taken against the petitioner. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-