Parties Cannot Be Penalised For Belated Issuing Of Certified Copy By Family Court: Kerala High Court

In the facts of the case, the Family Court issued the order for maintenance to be paid under Section 125 CrPC from the date of filing the petition, April 19, 2005. The application for a certified copy was filed on June 26, 2007, but the certified copy was issued only on 1^st December 2008. This inordinate and unexplained delay caused by the Family Court cannot prejudice the parties who want to file an execution application for seeking arrears of maintenance which has to be filed within one year from the date on which it becomes due.

Justice C S Dias relied upon Jang Singh vs Brijlal and others (1966) to refer to the legal maxim actus curiae neminem gravabit to state that a mistake committed by the Court should not prejudice a litigant.

“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.”, the Court stated.

The revision petitioners were the wife and daughter who had claimed arrears of maintenance from the respondent-husband. The Family Court ordered for payment of arrears of maintenance only from June 26, 2007, and denied arrears of maintenance from the date of filing the petition (i.e.,19.4.2005 to 20.6.2007). Aggrieved by the order, they approached the High Court.

The High Court had sought a report from the Family Court for the delay caused in issuing the certified copy. The High Court noted that the reasons for the delay could not be ascertained from the reports given by the Family Court.

The Court took note of the fact that even though the application for a certified copy was filed on June 26, 2007, the certified copy was issued only on 1^st December 2008. It held that the execution application was filed on 3^rd August 2009 which was within one year from the date on which the certified copy of the order was issued.

“In the instant case, Annexure A2 application was filed on 3.8.2009, i.e., well within one year from the date on which the certified copy of the order was issued to the revision petitioners. It is only on the date the order is issued, can the amount fall due, especially when the applications are disposed of after a considerable time period and ordering maintenance to be paid from the date of application.”

Accordingly, the Court set aside the impugned order and held that Section 125 (3) only prohibits a one-year limitation for the issuance of warrant and does not debar parties from filing execution applications. It also noted that the Family Court has not given reasons for denying arrears of maintenance from the date of filing the petition (i.e.,19.4.2005 to 20.6.2007). The Court also directed the respondent to pay arrears of maintenance from the date of filing the petition (i.e.,19.4.2005 to 20.6.2007).

Counsel for the petitioners: Advocates M.R.Sarin, Biju Gopal, M.R.Sasith, K.K.Sunil Kumar Idukki

Counsel for the respondents: Advocate Unni. K.K. Ezhumattoor

Citation: 2023 LiveLaw (Ker) 723

Case title: Sajani V Sabu

Case number: RPFC NO. 69 OF 2010

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