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
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
Crl.RC is allowed to the above extent.