1. The petitioner in Crl.M.P.No.394/2013 in M.C.No349/2010 on the file of the Family Court, Palakkad is the revision petitioner herein. The revision petitioner filed an application for maintenance as M.C.No.349/2010 before the Family Court, Palakkad and that court by order dated 4.1.2013 allowed the application and directed the respondent herein to pay maintenance at the rate of Rs.3,000/- per month from the date of petition namely 21.10.2010. Since the respondent did not pay the amount, the petitioner filed Crl.M.P.No.394/2013 under Section 125 (3) of the Code of Criminal Procedure for execution of that order. The learned Magistrate passed the following order:

“Respondent arrested and produced, no payment, sent him to jail for 1 month.”

This order is being challenged by the petitioner by filing this revision petition.

2. The respondent appeared through counsel.

3. Heard both sides.

4. The counsel for the revision petitioner submitted that the court below was not justified in passing imprisonment for one month alone when the default is for more than 30 months.

5. The counsel for the respondent submitted that it is a discretionary order which cannot be interfered.

6. It is an admitted fact that the family court had passed order of maintenance at the rate of Rs.3,000/- per month in favour of the revision petitioner payable by the respondent from 21.10.2010 and admittedly the respondent had committed the default. So, the revision petitioner filed application for execution under Section 125(3) of the Code, which reads as follows:

“If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole, or any part of each month's [allowance for the maintenance or the 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:

Provided 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:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation:- if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.”

7. The question as to whether what is the period of imprisonment has to be imposed for default has been considered by this Court in the decision reported in Mohammed Kutty v. State of Kerala (1984 KHC 348), wherein this Court has held that if an order has been passed and the amount payable as per the order is more than 12 months, the first application for execution can be filed for the entire amount claimed. But thereafter the upper limit for filing execution petition is only for 12 months. Further in the same decision it has been observed that the imprisonment must be one month for each default. This was followed in the decision reported in Narayanan @ Kuttani v. State of Kerala (2008 (1) KHC 784). The Division Bench of this Court in the decision reported in Sunil Kumar v. Jalaja (2007 (1) KLT 877) observed that a month's imprisonment for every month's default is the maximum penalty under Section 125 (3) of the Code and not a maximum of a month's imprisonment for the total default. So, the order passed by the court below imposing imprisonment for one month alone is not correct and the order is liable to be set aside and the matter has to be remitted to th