V.Vijayan Nair vs State Of Kerala on 3 June, 2008

Kerala High Court
V.Vijayan Nair vs State Of Kerala on 3 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.RC.No. 8 of 2003()



1. V.VIJAYAN NAIR ,C.NO.7412,C.P.TRIVANDRUM
                      ...  Petitioner

                        Vs

1. STATE OF KERALA
                       ...       Respondent

                For Petitioner  :SMT.PREETHA.P.S.(STATE BRIEF)

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice A.K.BASHEER

 Dated :03/06/2008

 O R D E R
                                A.K. Basheer, J.

                 - - - - - - - - - - - - - - - - - - - - - - - - - - -

                          Crl.R.C.No. 8 of 2003

                - - - - - - - - - - - - - - - - - - - - - - - - - - - -

                 Dated this the 3rd day of June, 2008

                                     ORDER

Petitioner suffered an order to pay maintenance to his wife and

two children at the rate of Rs.500/- each per mensem under Section

125 of the Code of Criminal Procedure. It is revealed from the records

that the order to pay maintenance was passed on August 29, 2002. It

appears that in the order the learned Judge of the Family Court

directed the petitioner to pay maintenance at the above rate with

effect from January 24, 2001, the date of application.

2. The Family Court, Thiruvananthapuram in execution of the

above order, had sentenced the petitioner to undergo imprisonment for

9 months since he had failed to comply with the above order.

Petitioner has preferred this petition from the prison while undergoing

imprisonment, contending, inter alia, that he could not have been

sentenced to suffer imprisonment for more than one month, in the light

of the decision of the Supreme Court in Shahada Khatoon & Ors. v.

Amjad Ali & Ors. (1999 (5) SCC 672).

3. A learned single Judge of this Court in Narayanan @ Kuttani

v. State of Kerala (2008 KHC 784) had occasion to deal with

precedents on the point including the decision of the apex Court

referred to above. The provisions contained in sub-clause (3) of Section

CRL.RC.8/2003. 2

125 will undoubtedly show that a defaulter is liable to be sentenced,

for the whole or any part of each month’s allowance towards

maintenance or interim maintenance and expenses of proceeding, as

the case may be, remaining unpaid after the execution of the warrant, to

imprisonment for a term which may extend to one month or until

payment, if sooner made. It is clear from the above provision that the

failure to pay whole or any part of each month’s allowance will invite a

sentence of imprisonment for a term which may extend to one month

or until payment, if sooner made.

4. In view of the above clear provision contained in sub-section

(3) of Section 125 of the Code, I have no hesitation to hold that the

sentence imposed on the petitioner cannot be held to be illegal or

irregular. However keeping in view the fact that petitioner’s both feet

had been amputated, the sentence imposed on him is reduced to 6

months’ imprisonment.

Crl.RC is allowed to the above extent.

A.K. Basheer
Judge.

an.

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