High Court Kerala High Court

Chandramohan vs State Of Kerala Represented By The on 21 January, 2009

Kerala High Court
Chandramohan vs State Of Kerala Represented By The on 21 January, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RPFC.No. 184 of 2008()


1. CHANDRAMOHAN,C.NO.4938,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA REPRESENTED BY THE
                       ...       Respondent

                For Petitioner  :SRI.SUNIL NAIR PALAKKAT

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

 Dated :21/01/2009

 O R D E R
                            R. BASANT, J.
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                   R.P.F.C.No. 184 of 2008
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             Dated this the 21st day of January, 2009

                               O R D E R

The petitioner has suffered an order under Section 125

Cr.P.C. obliging him to pay maintenance at the rate of Rs.3,000/-

p.m. to his wife and two minor children from 16.6.2003, the date

of the petition in M.C. 227 of 2003. That order was passed on

18.12.2003. Four petitions were filed for execution of that order.

Total period of default covered by these four petitions was 46

months. The learned Judge of the Family Court took note of the

fact that an amount of Rs.10,000/- had been paid. The two minor

children had allegedly become majors and in the third and fourth

applications, execution was sought only of the order so far as it

relates to the wife. No payment was made and as per orders

passed in two applications on 1.6.2007 the petitioner was

sentenced under Section 125(3) Cr.P.C. to undergo imprisonment

for a period of 9 months and 12 months respectively. By later

orders dt. 22.6.07 and 31.8.2007 he was sentenced to undergo

imprisonment for a further period of 12 months and 12 months

respectively. The petitioner is thus undergoing imprisonment from

1.6.2007.

2. The petitioner has preferred this revision petition through the

prison authorities. Services of a State Brief counsel was made

available to the petitioner. Subsequently a counsel has entered

appearance and he has advanced arguments on behalf of the petitioner.

3. According to the learned counsel for the petitioner the

impugned orders are incorrect, wrong, unjust and harsh. The counsel

raises a contention that the petitioner, as a matter of fact, had paid a

total amount of Rs.75,000/- Credit has been given to an amount of

Rs.10,000/- by the learned Judge of the Family Court. But for the

balance amount of Rs.65,000/- paid (Rs.50,000/- on 13.4.06 and

Rs.15,000/- on 4.5.06) no credit has been given. This payment was

actually made by cheques, it is submitted. Receipts duly executed by

the first claimant wife duly attested by witnesses are available with the

petitioner and those documents are produced before this Court. It is

prayed in these circumstances that the sentence imposed on the

petitioner is unjust and harsh. There may be a direction to the learned

Judge of the Family Court to consider the matter afresh.

4. The learned counsel for the petitioner submits that the first

claimant is already before the Family Court with a later application for

execution of the order. In these circumstances the petitioner, who is

remaining in custody from 1.6.2006, may not be compelled to remain

in custody any longer awaiting issue and return of notice to the

respondent. Appropriate directions may be issued, it is prayed.

5. I am ignoring the technicality that one revision petition has

been filed to assail four different orders. I find merit in the submission

of the learned counsel for the petitioner that the question whether as a

matter of fact a further amount of rs.65,000/- had actually been paid or

not deserves to be considered. This is notwithstanding the fact that the

petitioner had not raised such specific plea before the learned Judge of

the Family Court when the impugned orders were passed. The

genuineness of the receipts has to be got to be ascertained in detail

and the response of the claimant has to be ascertained.

6. Learned counsel for the petitioner further submits that even

going by the admitted version of the claimant, second and third

claimants attained majority long earlier and the petitioner is not liable

to continue to pay maintenance to them during the relevant period.

That contention also deserves to be considered. The counsel further

submits that execution has been claimed in the third and fourth

petitions for the period during which the petitioner was admittedly in

prison as per order dt. 1.6.2007. That aspect has also not been taken

into consideration by the learned Judge of the Family Court. In these

circumstances the only prayer made is that the impugned orders may be

set aside and the learned Judge of the Family Court may be directed to

dispose of all the four petitions afresh giving opportunity to the

petitioner to substantiate his contentions:

a) that a further amount of Rs.65,000/- had already been paid as

per receipts dt. 13.4.06 and 4.5.06;

b) that the minor children had attained majority and the petitioner

is not entitled to pay maintenance to them after the dates on which they

attained majority.

c) At least for the period during which the petitioner was in

custody undergoing imprisonment he should not be reckoned as having

wilfully defaulted payment.

d) At any rate, the petitioner is entitled to leniency and merely

because it is legally competent to impose a sentence of one month for

default in payment of maintenance for one month or part of it, the

maximum sentence need not necessarily be imposed.

7. I am satisfied that the request can be accepted. I take note of

the fact that the petitioner has been remaining in custody for a period

exceeding 19 months(from 1.6.07). I am satisfied that this revision

petition can be allowed.

8. In the result:

a) This revision petition is allowed.

b) The impugned orders i.e. i) dt.1.6.07 in CMP 564 of 2004,

ii) dt.1.6.07 in CMP 750 of 2005, iii) dt. 22.6.07 in CMP 610 of 2006

and iv) dt.31.8.07 in E.P.(Crl.) 1085 of 2007 are hereby set aside.

c) The learned Judge of the Family Court is directed to dispose

of all these four applications afresh in accordance with law giving the

petitioner an opportunity to raise and substantiate his contentions.

d) The petitioner is said to be in custody . He shall be released

from custody forthwith. He shall appear before the learned Judge of

the Family Court to continue the proceedings on 24.2.2009. If he does

not appear the learned Judge can proceed to dispose of the petitions

afresh on the basis of the materials available and placed before court.

e) The receipts dt.13.4.06 and 4.5.2006 produced before this

Court shall forthwith be forwarded to the Family Court along with a

copy of this order.

9. Hand over the order.

(R. BASANT)
Judge
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