BENNY VARGHESE Vs. SIBY P.KURUVILLA

JUDGEMENT

(1.) The Revision Petitioner herein is the respondent in M.P. No. 51 of 2012 in M.C. No. 345 of 2006 on the files of the Family Court, Muvattupuzha. He is the husband of the 1st respondent and the respondents 2 and 3 are the minor children aged 10 years and 7 years respectively, born in that wedlock. The respondents herein filed M.C. No. 345 of 2006 before the Family Court, Ernakulam, seeking maintenance allowance from the Revision Petitioner herein. The above M.C. was allowed by an order dated 16.10.2009 directing the Revision Petitioner to pay maintenance allowance @ Rs. 750/-per month to the respondents 1 to 3 from 2.12.2006, the date of petition. To enforce the said order, on 29.12.2012 the Family Court issued warrant under S. 421(b) Cr.P.C., since the balance due from the Revision Petitioner as on that date was Rs. 1,05,750/-. The Revision Petitioner challenged the above order before this Court by filing R.P. (FC) No. 32 of 2013. This Court, as per order dated 29.1.2013, set aside the order dated 29.12.2012 and directed the Family Court to hear both parties and to pass an order afresh in accordance with law.

(2.) The impugned order was passed in M.P. No. 51 of 2012, a petition filed by the respondents under S. 128 of the Criminal Procedure Code to realise the total amount of Rs. 1,23,750/- from the Revision Petitioner. The respondents have claimed arrear for 55 months i.e., for the period from 2.12.2006 till 21.7.2011, the date of filing M.P. 51/2012. This Petition was opposed by the Revision Petitioner contending that the respondents are not entitled to claim maintenance for more than one year. As per the proviso to sub-section (3) of S.125, no warrant shall be issued for recovery of any amount due under the above section, unless the application is made within a period of one year from the date on which it became due. The respondents can claim arrear only for one year prior to the date of filing of the petition.

(3.) The Court below considered the question whether the respondents are entitled to realise Rs. 1,23,750/- from the Revision Petitioner, i.e., whether the respondents are entitled to claim arrear for a period beyond one year. After considering the rival contentions, the Family Court found that the respondents are entitled to get the full amount as claimed i.e., the period beyond one year. The legality, propriety and correctness of this order is under challenge in this Revision Petition.