AFSATH Vs. MATTARA MOIDEEN

JUDGEMENT

(1.) The short question that arises for consideration in this petition is :

(2.) The petitioners are the wife and two children in favour of whom an order for maintenance was passed by the Family Court Manjeri, at the rate of Rs. 350/- per month to the wife and Rs. 300/- each per month to the two children. Thus, the total amount payable by the 1st respondent-husband to the petitioners herein comes to Rs. 950/- per month. An application was filed by the petitioners under Section 125(3)/128 Cr.P.C. to execute the order. It is pointed out by the learned counsel for the petitioners that a landed property measuring four cents in which a residential house is also there, stands in the name of the respondent- husband. But the fact that the house mentioned above is the one where the petitioners are residing was not taken serious note of by the court below.

(3.) Two remedies are available for the enforcement of the order. The first remedy is by issue of a warrant for the levy of the amount as if it is a fine under Sec. 421 of the Code, by attachment and sale of any moveable property of the defaulter and/or a warrant to the collector empowering him to realise the amount as arrear of land revenue from the moveable and immovable property or both of the defaulter. The other remedy is by sentencing the defaulter/husband for the whole or in part of each month's allowance remaining unpaid, to imprisonment for a term which may exceed to one month or until payment if sooner made. Therefore, the contention that was advanced was that the first thing that must be done is to issue a distress warrant. It is only for the whole or part of each month's allowance that remains unpaid after the execution of the distress warrant that the defaulter can be committed to jail. Therefore, the view seems to have been taken by the court below is that the warrant empowering the District Collector to realise the amount of maintenance, as if it is arrear of land revenue, having been found not unexecutable, warrant authorising the defaulter husband to be committed to jail would be illegal.