Mohandas Manukuttan Chettiyar vs Jayanthi G. Ramakrishnan and Others

C.T. Ravi kumar, J.—A convict, who is undergoing the sentence of imprisonment on account of the default committed in paying the

maintenance ordered u/s 125, Cr. P. C. in M. C. No. 775 of 2007 by the Family Court, Malappuram has filed this revision petition. In fact, it has

been sent from jail. As per order dated 21-12-2007 the said M. C. was allowed and the revision petitioner herein was directed to pay monthly

maintenance at the rate of Rs. 1,000/- to the first petitioner and Rs. 500/- each to petitioners 2 to 4 therein from the date of filing of the said M. C.

and the first petitioner therein was authorised to receive/collect it. For enforcing the order of maintenance, the petitioners therein filed a petition u/s

128 of the Code of Criminal Procedure. Subsequently, the respondent therein/the revision petitioner herein was arrested and was produced before

the Court. He was sentenced to undergo imprisonment for one year as per the impugned order passed thereon. As this petition has been sent from

jail Adv. Jaishankar V. Nair has been appointed as the State Brief to conduct the case of the revision petitioner. Notice has been ordered to the

respondents herein/petitioners therein. They entered appearance through counsel.

I have heard Adv. Jaishankar V. Nair, learned State Brief for the revision petitioner and also Adv. P. Shamsudeen, learned counsel for the

respondents.

As noticed earlier, the revision petitioner was directed to pay maintenance at the rate mentioned above by the Family Court, Malappuram as per

order dated 21-12-2007 in M. C. No. 775 of 2007. Pursuant to the impugned order, the petitioner has been sent to jail and he has been there

from 31-11-2011. The learned counsel for the revision petitioner raised many a legal questions including whether on a single petition u/s 128, Cr.

P. C. alleging default in payment of the maintenance for a long period the defaulter can be sentenced to undergo imprisonment for a period of more

than one month holding that the liability of the husband arising out of an order passed u/s 125, Cr. P. C. to make payment of maintenance is a

continuing one. The learned counsel attempted to undo the order with the support of the decision of the Hon''ble Apex Court in Shahada Khatoon

v. Amjad Ali, reported in 2000 KHC 128 : (1999 AIR SCW 4880). Per contra, the learned counsel for the respondents submitted that a sentence

in terms of the provisions u/s 125(3), Cr. P. C. for a term exceeding even one year is possible in view of the decision of this Court in T. K.

Ramakrishnan v. Subhadra, reported in 2009 (1) KLT 813 : (AIR 2009 (NOC) 1895). The learned counsel for the revision petitioner further

submits that the impugned order is liable to be set aside on another ground as well. It is submitted that in the light of the decision of this Court in

Abdul Rahiman v. State of Kerala and others (2011 (3) KHC 931) the impugned order being one mechanically made, without any application of

mind, is liable to be set aside. In that case, this Court held that in awarding a punishment for committing default in complying with the order of

maintenance u/s 125(3), Cr. P. C. the Court has to exercise its jurisdiction having regard to the facts and circumstances of the case. At any rate,

sentencing cannot be mechanical and the Court has to apply its mind while fixing the term of imprisonment. I am of the considered view that the

other legal questions need be considered only if the impugned order survives the consideration in the light of Abdul Rahiman''s case (supra).

Therefore, firstly, I may consider the sustainability of the impugned order in the light of Abdul Rahiman''s case (supra). In this context, it is to be

noted that the aforesaid view in Abdul Rahiman''s case (supra) is supported by an earlier decision of this Court in Mohammed Kutty v. State of

Kerala, reported in 1985 (1) Crimes 702 (Ker). It was held therein that a month''s imprisonment for every default is not the rule and sentencing

cannot be mechanical. In the case on hand the impugned order reads thus :--

Petition filed u/s 128 of the Code of Criminal Procedure.

Respondent arrested and produced before Court. No payment. Hence he is send to Central Jail, Kannur for one year.

At the very outset, it is to be noted that the provisions u/s 125(3) of Cr. P.C., obviously, cannot be regarded as a means of punishment whilst it is

only a means of enforcement of payment. It cannot be regarded as an order of punishment for contempt of Court. This has to be borne in mind

while passing an order sentencing for imprisonment especially in view of the decision in Muhammed Kutty''s case (supra) that a month''s

imprisonment for every default is not the rule and the said position is very much evident from a bare perusal of Section 125(3) of Cr. P. C. as well.

Before passing an order u/s 125(3) of Cr. P. C. it is the bounden duty of the Court to consider whether the non-payment of maintenance is the

result of a willful negligence on the part of the defaulter, A perusal of Section 125(3), Cr. P. C. would reveal that the Magistrate may, for every

breach of the order, issue a warrant for levying the amount in the manner provided for levying fines. The first proviso to Section 125(3), Cr. P. C.

makes it mandatory for the Court to see whether the application has been made within prescribed time. During such consideration the Court has

also to look into the fact whether the application is made for maintenance awarded in favour of the minors as in the case of minors the provisions

under Sections 3(6) and 29 of the Limitation Act may become applicable. In terms of the said proviso an application shall be presented by the

person entitled to maintenance under an order of the Court u/s 125, Cr. P. C. within one year from the date on which the amount becomes due.

When that be the provision, there cannot be any doubt that while considering an application u/s 128, Cr. P. C. for enforcement of the order of

maintenance the Court is bound to look into the period covered by the application and whether there was any wilful negligence on the part of the

defaulter. Going by Section 125(3), Cr. P. C. a recourse to attachment and sale of property u/s 421, Cr. P. C. can also be resorted to. Above all,

it is to be noted that the proviso u/s 125(3), Cr. P. C. is virtually intended to prevent a person entitled to maintenance from being negligent and

allowing arrears claimable until the recovery to become a great hardship or impossibility. Bearing in mind all the aforesaid aspects and also the

decisions of this Court in Abdul Rahiman''s case (supra) and Muhammed Kutty''s case (supra) the sustainability or otherwise of the impugned

order has to be tested. It is not discernible from the impugned order as to what was the period of arrears covered by the concerned application,

whether the application was filed within the time and, if not, whether there was any reason for condoning the delay in filing the application by virtue

of any provision of law. So also, there I was no consideration as to where non-payment of the maintenance awarded was the result of a wilful

negligence on the part of the revision petitioner. Nothing is discrenible from the order as to whether prior to the passing of the sentence of

imprisonment the prescribed procedures have been followed or not. If the warrant of arrest was issued straightway there must be conclusive

materials before the Court to arrive at a conclusion regarding the non-possession of any property by the defaulter. All these aspects, evidently, do

not seem to have been considered by the Family Court before passing the impugned order. In the said circumstances, I have no hesitation to say

that in the light of Abdul Rahiman''s case (supra) and Muhammed Kutty''s case (supra) the impugned order was passed mechanically without any

application of mind. In the result, the impugned order of the Family Court is set aside. Since the revision petitioner is undergoing sentence he is

now, to be released. As noticed earlier, there was nothing on record to reveal the real period covered by the application submitted by the

respondents that led to the sentence of imprisonment of the revision petitioner. If the period covered by the application in question that led to the

issuance of the impugned order is more than the period which could be covered by the term of imprisonment undergone by the revision petitioner,

then, the Family Court will take up the application and pass appropriate orders after considering the application afresh. For deciding on such

issues, the parties shall appear before the Family Court on 28-6-2012. On such appearance, the aforesaid questions shall be considered, in

accordance with law, and if a fresh consideration of the application is required, in view of this order, the Family Court shall pass appropriate

orders in accordance with law and taking into account the observations made hereinbefore. Needless to say that, before passing any such order

proper opportunities shall be afforded to both parties. Before parting with the case I may hasten to add that whenever an order of sentence of

imprisonment is to be passed u/s 125(3) of Cr. P. C. it is incumbent on the Court to pass a reasoned order. This is because such an order is

revisable.

The revision petition is disposed of accordingly.

The Registry shall communicate this order forthwith.