IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 WP(C).No. 33997 of 2009(R) -------------------------- MC.197/2004 of FAMILY COURT,KOZHIKODE .................... PETITIONER(S): --------------- ABDUL REHIMAN, S/O. ABDULLA, CHOLATTUPOYEL, VALLIADNADA, PAYYOLI, KOZHIKODE. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): --------------- 1. RABIA, D/O. IBRAHIM, MALAYIL, PUTHUPPANA AMSOM, VADAKARA TALUK. 2. ABDUL SHAMEER, S/O. RABIYA, REPRESENTED BY MOTHER, 1ST RESPONDENT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(C) No. 33997 of 2009-R ------------------------------------------------- Dated this the 26th day of November, 2009 JUDGMENT Basant,J. The petitioner has suffered an order under Sec.125 of the Code of Criminal Procedure obliging him to pay maintenance to his wife and a minor child. He has not been paying the amounts and this has obliged the claimants - wife and child, to approach the Family Court for execution of the order. As the petitioner did not appear before the Family Court, the learned Judge of the Family Court has now issued a non-bailable warrant to procure the presence of the petitioner. At this juncture, instead of going before the learned Judge and depositing the admitted amount and/or raising his contentions, he has come to this Court with this petition under Art.227 of the Constitution. W.P.(C) No. 33997 of 2009 -: 2 :- 2. We find absolutely no justification in the prayer to invoke the jurisdiction under Art.227 of the Constitution. It is for the petitioner to appear before the learned Judge and advance his contentions, if any. Needless to say, such contentions will have to be considered by the learned Judge of the Family Court before ordering imprisonment of the petitioner under Sec.125(3) Cr.P.C. We have no reason to assume that the learned Judge would not hear the petitioner or shall pass the order of imprisonment without and before hearing him. We do not hence think it necessary to issue any specific directions. We assume that the law shall take its proper course and any order sentencing the petitioner shall be passed by the Family Court under Sec.125(3) Cr.P.C. only after hearing the petitioner. 3. The learned counsel for the petitioner submits that a warrant of arrest is chasing him and that he may be permitted to appear before court in peace so that he can raise his contentions. Subject to any reasonable conditions, such an opportunity may be given to him, contends the learned counsel for the petitioner. 4. The last limb of the submission appeals to us. If the petitioner forthwith - within a period of 10 days, deposits half the amount due to the claimants in the execution petitions, the Family Court shall withdraw the warrant and call the case on the W.P.(C) No. 33997 of 2009 -: 3 :- next date of posting to enable the petitioner to appear and make his submissions, if any. We make it clear that this should not be used as an excuse for further protraction of the proceedings and all submissions, if any, of the petitioner must be made before the court below to enable the court to pass orders on the next date of posting. 5. The learned counsel for the petitioner submits that the petitioner has not been arrested and it is accepting that submission that this judgment is passed. If he has already been arrested, appropriate orders can be passed by the Family Court. 6. This writ petition is accordingly dismissed. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //True Copy// P.S. to Judge