Parties Seeking Maintenance Arrears Cannot Be Penalized For Family Court's Delay To Issue Certified Copy Of Order: Kerala High Court

The Kerala High Court observed that parties seeking maintenance arrears cannot be penalized for delays caused by the Family Court in providing certified copies.

The Court allowed a Revision Petition filed by a woman and her daughter. The Petition challenged the order of the Family Court whereby only partial arrears were granted.

The Bench of Justice C.S. Dias observed, “It needs no second thought to understand that there was laches on the part of the Family Court in belatedly issuing the certified copy. But, that cannot be a reason to penalise the revision petitioners, who have done no wrong. The revision petitioners are entitled to the entire arrears of maintenance claimed in Annexure A2 application”.

Advocate M.R. Sarin appeared for the Petitioners and Advocate Unni. K.K. Ezhumattoor appeared for the Respondent.

A woman and her daughter (Revision Petitioners) filed a maintenance claim against the Respondent under Section 125 of the Criminal Procedure Code, 1973 (CrPC). The Family Court ordered the Respondent to pay Rs. 750/- per month per Petitioner. Due to delays in receiving the certified copy of the order and a change in territorial jurisdiction, the Petitioners applied to the recovery of arrears from April 19, 2005, to July 18, 2009, claiming Rs. 76,500/-.

The Family Court allowed the Petitioners to recover arrears only from June 21, 2007, citing the one-year limit under the proviso to Section 125(3) of CrPC. The Petitioners approached the High Court by way of Revision Petition challenging the order of the Family Court.

The Court noted that according to the first proviso to subsection (3) of Section 125, a warrant cannot be issued to collect any amount owed under Section 125 unless an application is filed with the court to collect the amount within one year of the date it becomes due.

“The first proviso to sub-sec(3) of Sec.125 of the Code stipulates that no warrant shall be issued for recovery of any amount due under Sec.125, unless the application is filed in Court to levy such amount within one year from the date on which it becomes due”, the Bench noted.

The Bench observed that Petitioners had applied for recovery of arrears on August 3, 2009, which was within one year of receiving the certified order copy on December 6, 2008. The Bench accepted the Petitioner’s contention that the maintenance amount only becomes due on the date the order is issued, especially when applications are processed after a significant delay and the order mandates payment starting from the application date.

The Bench observed that the Family Court, without providing any rationale, limited the recoverable arrears to the period after June 21, 2007, disregarding the delay in receiving the order. This constituted an error and impropriety on the part of the Family Court.

The Court acknowledged the significant delay in issuing the certified copy by the Family Court. While recognizing this as a lapse, the Bench emphasized that the Petitioners, who have acted in good faith, should not be penalized for it. The Court noted the right to recover the entire amount of maintenance claimed, observing that the one-year limit in Section 125(3) only applies to issuing warrants and does not restrict filing applications.

The Bench noted that the Family Court erred in providing specific reasons for denying the claim for one year's arrears.

Accordingly, the Court allowed the Revision Petition and set aside the impugned order.

Cause Title: Sajani v Sabu (2023:KER:78329)

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