The main legal point established in the judgment is that the application for recovery of maintenance must be filed within the specified time limit, and the sentencing power of the Criminal Court for the recovery of maintenance amount is based on the duration of the arrears, not limited to one month.

1. Convict No. 3993, Mohammedkutty is undergoing imprisonment in the Cannanore Central Prison as he does not pay maintenance to a boy whom he does not recognise as his son. Behind bars, he realises that his detention is. illegal. He has, therefore, sent a petition from the prison which has come up for disposal on the judicial side. This is thus treated as a revision under S.397 of the Code of Criminal Procedure.

2. In proceedings for maintenance under S.125 of the Code, the petitioner disputed both the factum of marriage and also the paternity of the child. The Judicial Magistrate of the First Class, Kalpetta held that there was no marriage; but he is the father of the child and he was directed to pay maintenance to the child at the rate of Rs. 25/-per month with effect from 24-6-1981, the date of the application. This order was passed on 26-10-1982.

3. He did not pay the amount and an execution application to realise the amount was filed on 28-3-1983. The Magistrate directed him to pay the arrears from 24-6-1981 to 28-3-1983, for a period of 21 months. On his refusal to pay steps were taken to recover the amount as fine. The Collector reported that there was no property to be attached and thereafter the Magistrate issued an arrest warrant. He was produced on 27-9-83 and he was again given a further opportunity to pay. He refused and asserted in Court that he would not pay. The Court, therefore, sentenced him to imprisonment for 21 months.

4. The sentencing power of the Criminal Court for the recovery of the maintenance amount is the question that arises for consideration. Proviso to Sub-section (3) of S.125 of the Code says that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due. The amount, in this case became due on 26-10-1982, when the Court passed the order and every month thereafter. The application was to be filed within one year from the date when the amount became due. An application filed, as in this case within the first twelve months after the order is passed by the Magistrate is thus within time. If any application is filed subsequently, recovery of the amounts which fell due within 12 months of that application alone would be recoverable. The fact that the court had ordered the petitioner to pay maintenance from the date of application i. e. 24-6-1981 only meant that the amount was payable from 24-6-1981; but it became due when the order was passed on 26-10-1982. The arrears will thus be one lump sum due on the date of the order, i e. 26-10-1982. Time for filing the application to recover this amount thus commences only from the date of the order. Any other interpretation would impose a premium on the right of the Court to grant maintenance, for, in that event, the Court can grant maintenance, not from the date of the application for maintenance, but only for 12 months prior to the date of the order. There is no warrant for any such assumption Even if it be true, the application for execution will have to be filed on the same date as otherwise a portion will again get barred under S.125(3). S.125(3) does not admit of any such unfair interpretation to import an unjust conclusion as well

5. The next question relates to the quantum of punishment that can be imposed for recovery of arrears of maintenance. Under S.125(3), the sentence, for the whole or any part of each month's allowance remaining unpaid, after the execution of the warrant, can only be imprisonment for a term which may extend to one month or until payment if sooner made. Does this provision mean that the maximum sentence which the Magistrate can impose is only one month? The power to sentence is in respect of the whole or any part, of each month's allowance defaulted and therefore for the default in respect of each month, there can be a sentence of imprisonment upto one month. It is not corre