Is there a cap on the maximum sentence that can be imposed under S.125(3) of the Code of Criminal Procedure? Is it the law that a sentence exceeding 12 months can never be imposed on a defaulter in a single application for execution? These questions do arise for consideration in this revision petition.

2. This revision petition is filed by the petitioner who has suffered an order under S.125(3) of the Cr.

P.C. sentencing him to undergo imprisonment for a period of 20 months for non-payment of the maintenance amount of Rs.11,400/- i.e., at the rate of Rs.300/-per mensem for 38 months. The petitioner could not engage a counsel of his own. He has preferred this petition through prison authorities. The delay was condoned and the petition was admitted. Services of a State Brief counsel was assigned for his help. Advocate Mr. N.K. Subramanian has advanced arguments on behalf of the petitioner.

3. A report of the learned Magistrate was called for. The order passed in the revision was also made available for my perusal. The respondent, though served, has not chosen to enter appearance. I have adverted to all the relevant inputs.

4. M.C. No.49/98 was filed before the learned Judicial Magistrate of the First Class, Mannarkkad, by the respondent/claimant claiming maintenance under S. 125 of the Cr.P.C. from the petitioner/her husband. The learned Magistrate by order dated 24/8/01 directed payment of maintenance at the rate of Rs.300/- per mensem from the date of the petition i.e., 16.08. The revision filed was dismissed by the Sessions Judge, Palakkad, as per the order dated 8.06 in Crl. R.P.No.37/04.

5. On 10.01, within two months from the date of the order dated 28.01, the claimant/wife filed an application for recovery of the amount of Rs.11,400/- being the maintenance payable for the period of 38 months at the rate of Rs.300/- per mensem. By then, the Family Court had been established and the application was dealt with by the Family Court under S.7 (2) of the Family Court Act. The learned Judge of the Family Court, after taking necessary steps - the amount was not paid or recovered, proceeded to pass the impugned order sentencing the petitioner to undergo simple imprisonment for a period of 20 months or till the payment of Rs.11,400/- whichever is earlier.

6. The learned counsel for the petitioner contends that in any view of the matter, the learned Judge of the Family Court could not have sentenced the petitioner under S.125(3) of the Cr.P.C. for a period exceeding 12 months. The learned counsel in support of this contention places reliance on S.125(2) of the Cr.P.C., S. 125(3) of the Cr.P.C. and its first proviso as also, the observations in para-4 of the decision in Sundaran Vs. Sumathi (2006 (3) KLT 725). It is the contention of the learned counsel for the petitioner that going by the statutory provisions and the precedents, under no circumstances can a defaulter be sentenced to imprisonment for a period exceeding 12 months for non-payment of the amount of maintenance ordered under S.125 of the Cr.P.C. in a single application.

7. It will be apposite straightaway to take note of the statutory provisions. S.125(2) of the Cr. P.C. reads as follows:

“(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be." (emphasis supplied)

It is clear that on the date when the order is passed, the Family Court/Magistrate has the jurisdiction to direct payment of maintenance from the date of the order or from the date of the application for maintenance. It, therefore, is evident that if the application for maintenance is not disposed of within a period of 12 months and the order is passed in the application under S.125 beyond the period of 12 months from the date of the petition, an order passed may invite the liability