ABDUL MUJEEB Vs. SUJA

JUDGEMENT

(1.) The petitioner's wife and children, respondents 1 to 4 herein, had approached the Family Court, Mavelikkara by filing MC No.42 of 2016 claiming maintenance allowance under Sec. 125 of Cr.P.C. As the petitioner failed to appear despite issuance of notice, he was set ex parte and the maintenance case decided as per order dtd. 30/08/2016, directing the petitioner to pay maintenance allowance at the rate of Rs.4,000.00 to each claimant with effect from 16/4/2016.

(2.) The petitioner having failed to pay maintenance in terms of the order, respondents 1 to 4 filed CMP No.142 of 2019 claiming a total amount of Rs.1,20,000.00 towards arrears of maintenance for the period from 30/1/2019 to 30/10/2019. The petitioner filed an objection to the execution petition contending that, as against the claim for Rs.1,20,000.00, he has already paid an amount of Rs.2,68,607.00. The court below after hearing the parties, dismissed CMP No.142 of 2019, finding that the petitioner had paid Rs.1,15,152.00 to the account of the second respondent, which along with other payments made towards education fees and expenses of respondents 2 to 4 totaled Rs.2,68,607.00.

(3.) On dismissal of CMP No.142 of 2019, respondents 1 to 4 filed Crl.MP No.220 of 2022 seeking review and recall of the order dismissing the execution petition. In the petition for review, respondents contended that the petitioner had not paid any amount towards maintenance allowance and the payments claimed to have been made were towards the educational expenses of the children, more particularly the second respondent, who was pursuing his Engineering Course. The respondents also produced documents to show that the petitioner had received reimbursement for the amount spent for educational expenses of the children. It was also contended that the petitioner was liable to pay maintenance to each respondent separately and the excess amount paid to one of the respondents cannot be taken as a ground for rejecting the claim made by the others. The petitioner filed an objection to the review petition contending that the payment was made in favour of the second respondent based on a joint demand made by all respondents. Further, the order sought to be reviewed being one passed under Sec. 128 Cr.P.C, the prohibition against review under Sec. 362 would apply.