Abdul Nazar vs State of Kerala and Ms. Suhara

M. Sasidharan Nambiar, J.—Petitioner is the respondent in M.C.35/2002 on the file of Family Court, Kozhikode. Wife and the minor son filed the petition u/s 125 of the Code of Criminal Procedure claiming maintenance. Family Court, Kozhikode directed petitioner to pay maintenance at the rate of 1000/- to the wife and Rs. 750/- to the minor son. Petitioner challenged it before this Court in R.P.(F.C) 21/2003. Under Annexure 1 order dated 2.6.2008 the revision was dismissed confirming the maintenance. On the failure to pay maintenance, in execution a warrant of arrest was issued by the Family Court. This petition is filed u/s 482 of the Code of Criminal Procedure to quash the further proceedings in C.M.P 251/2008 on the ground that subsequently petitioner dissolved his marriage with second respondent by thalaq and therefore no maintenance is payable after the date of the thalaq and thereafter petitioner is only liable to pay the amount as provided u/s 3 of the Muslim Women (Protection of Rights on Divorce) Act. It is also contended that M.C.12/2009 filed by respondent u/s 3 of the Act is pending before Judicial First Class Magistrate Court I, Thamarassery.

Learned Counsel appearing for the petitioner was heard.

Case of the petitioner is that under Annexure II his marriage with second respondent was dissolved by thalak which was intimated to ber registered post, evidenced by Annexure III postal acknowledgement and inspite of Annexure IV objection filed by the petitioner, the Family Court has not considered the objection.

As per the order confirmed under Annexure I order in RPFC No. 21/2003 petitioner is liable to pay the maintenance as ordered by the Family Court. Even if it is taken that being a dissolved mohammedan wife second respondent is not entitled to the maintenance, petitioner is liable to pay maintenance for the minor son who is not impleaded in the Petition. Execution of the order of arrest for realisation of the amount due to the minor son is perfectly valid and cannot be interfered. The prayer of the petitioner for a direction to quash the order issuing non-bailable warrant hence cannot be allowed.

If the petitioner files an application to consider the question whether petitioner is liable to pay maintenance, as provided under Annexure I order consequent to the dissolution of the marriage with the second respondent, Family Court is to decide the question and till then steps shall not be initiated for arrest of the petitioner for non- payment of the maintenance awarded to the respondent from the date of the thalaq evidenced by Annexure II. If the petitioner pays or deposits the amount due to the minor son, petitioner shall not be arrested in execution of the order for maintenance.

Crl.M.C is disposed of.