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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