JUDGMENT :

R. SUBBIAH, J.

(Prayer: Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Habeas Corpus directing the respondents 1 and 2 to produce the detenu, namely, M.Rajkumar @ Muthaiah, son of Muthaiah, aged 38 years, before this Court and set him at liberty who is confined in Central Prison, Madurai, based on the order passed in Cr.M.P.No.97 of 2017 in M.C.No.33 of 2010 on the file of the Family Court, Madurai.)

1. The petitioner has come forward with the present petition seeking a writ of Habeas Corpus to direct the respondents 1 and 2 to produce the detenu, namely, M.Rajkumar @ Muthaiah, son of Muthaiah, aged 38 years, before this Court and set him at liberty who is confined in Central Prison, Madurai, based on the order passed in Cr.M.P.No.97 of 2017 in M.C.No.33 of 2010 on the file of the Family Court, Madurai.

2. Facts-in-nutshell leading to the filing of the present petition, are hereunder:

2.1. The petitioner married one Maheswari on 13.12.1999 and due to the wedlock, the respondents 3 and 4 were born. However, due to misunderstanding between the petitioner and his wife, they got divorce by virtue of the decree in H.M.O.P.No.115 of 2007 passed by the learned Sub Judge, Srivilliputtur. Thereafter, the mother of the minor respondents 3 and 4 filed a petition on 26.03.2010 under Section 125 Cr.P.C., in M.C.No.33 of 2010 seeking maintenance for the minor respondents 3 and 4 and the learned Judge, Family Court, Madurai, by order dated 23.02.2017, directed the petitioner to pay a sum of Rs.3,000/- (Rupees Three Thousand only) each per month towards maintenance to the minor respondents 3 and 4. Whereas the petitioner paid a sum of Rs.10,000/- (Rupees Ten Thousand only) towards interim maintenance, however, he could not pay the maintenance amount as directed by the Family Court, because he has to maintain his aged parents with his meagre income earned as a hair stylist.

2.2. The total arrear amount for 83 months would be around Rs.4,84,000/- (Rupees Four Lakhs and Eighty Four Thousand only) and hence, the mother of the minor children filed a petition under Section 128 Cr.P.C., in Cr.M.P.No.97 of 2017, to recover the same and the Family Court, Madurai, by order dated 29.06.2017, ordered the petitioner to undergo 15 days simple imprisonment for one month's default, totalling 41 ½ months for non-payment of arrears for 83 months. Accordingly, the petitioner has been incarcerated from 29.06.2017 which, according to the petitioner, is against the provisions of Section 125(3) Cr.P.C. Further, the revision filed by him with the delay of 237 days could not be numbered on account of non-payment of cost of Rs.5,000/- (Rupees Five Thousand only) and therefore, finding no other alternative remedy, the petitioner has filed the present Habeas Corpus Petition.

3. Since the Registry has entertained a doubt as to the maintainability of this petition, the matter has been directed to be listed before this Court under the caption “For Maintainability”.

4. When the matter is taken up for hearing, the learned Counsel for the petitioner submitted that the present Habeas Corpus Petition is maintainable for the reason that as and when some rights of a prisoner who is in lawful custody, are deprived of, the Court can intervene with the same, as held by the Honourable Supreme Court in Coffin v. Reichard reported in AIR 1978 Supreme Court 1675.

5. He further submitted that failure to comply with the requisite procedure would be fatal to the legality of the execution of any act or of the passing of any order by any one authorised by law and in the case on hand, the petitioner has been incarcerated for more than the period prescribed by Section 125(3) Cr.P.C., and thus, the impugned order passed by the Family Court, is unsustainable and warrants interference, in the light of the dictum laid down by the Honourable Full Bench of this Court in Roshan Beevi v. Joint Secretary to the Government of Tamil Nadu and others repo