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2023 Supreme(Online)(KER) 27867
HIGH COURT OF KERALA
C.S. DIAS, J
RIJAS M.T – Appellant
Versus
HAFSEENA M – Respondent
RPFC 462 2023
LEGITH T.KOTTAKKAL
The maximum imprisonment for maintenance default under Section 125(3) is one month for each month in arrears, not exceeding that for cumulative defaults.
Headnote:
Maintenance - Family Law - Criminal Procedure Code 125(3) - The court clarifies that the maximum imprisonment for maintenance defaults is one month for each month in arrears, not a cumulative sentence beyond one month, and reaffirms procedures for enforcement.
Fact of the Case:
The revision petitioner was sentenced to ten months for failing to pay maintenance of Rs.8,000/- for 28 months, leading to his imprisonment despite claims of no means to pay.
Finding of the Court:
The Family Court's sentencing was upheld, affirming the interpretation that a person can be imprisoned for one month for each month's default, contrary to the petitioner's claim of an unlawful ten-month sentence.
Issues: Whether the Family Court exceeded jurisdiction by imposing a ten-month sentence under Section 125(3) and whether proper procedures were followed as per Section 421 of the Code.
Ratio Decidendi: The court determined that the maximum sentence under Section 125(3) is one month per breach (default month) and that no procedural error occurred in proceeding without following Section 421, given the petitioner's disclosures.
Final Decision: The revision petition is dismissed, and the Family Court's sentence is confirmed.
O R D E R
The question regarding the maximum sentence that can be imposed under Section 125 (3) of the Code of Criminal Procedure , 1973, refuses to fade out despite repeated pronouncements made by this Court on the point.
2. The revision petitioner challenges the proceedings in M.P.(Ex) No.7/2023 of the Family Court, Kalpetta, sentencing him to undergo imprisonment for ten months on his failure to pay the arrears of maintenance allowance to the respondents for twenty eight months. The revision petitioner was the respondent, and the respondents were the applicants before the Family Court.
Relevant Facts:
3. The respondents – the wife and two children of the revision petitioner – had filed the execution application under Section 128 of the Code of Criminal Procedure (‘Code’ for short) to enforce the order dated 19.10.2022 in M.C No.21/2021 by directing the revision petitioner to pay the respondents arrears of monthly maintenance allowance @ Rs.4,000/- for the period from 12.03.2021 to 12.01.2023.
4. The revision petitioner has averred that he had appeared before the Family Court in the execution application and pleaded no means to pay arrears of maintenance. Even though he deposited Rs.10,000/- on 19.06.2023, the Family Court sentenced him to imprisonment for ten months. The revision petitioner has been in jail for the last four months. He has no near relatives and does not have the means to pay the maintenance allowance. The impugned proceedings are perverse, arbitrary and illegal because the Family Court is not empowered to sentence the revision petitioner to imprisonment for more than one month. The proceedings are infringement of the revision petitioner's right to life as guaranteed under Article 21 of the Constitution of India, a violation of Section 125 (3) of the Code and the law laid down by the Hon'ble Supreme Court inRajnesh v. Neha & Anr. [ (2021) 2 SCC 324 ]. The revision petition may be ordered to be released from prison
5. Heard; Sri.Legith T. Kottakkal, the learned counsel appearing for the revision petitioner and Smt.T.B. Remani, the learned counsel appearing for the respondents.
6. The learned counsel for the revision petitioner strenuously argued that the impugned proceedings and the procedure followed by the Family Court are erroneous and improper. He contended that in view of the law laid down by the Honourable Supreme Court in Shahada Khatoon & Ors. v.
Amjad Ali & Ors. [2000 (1) KLT 696 (SC)], the maximum period of imprisonment can only be one month. Furthermore, the Family Court has failed to issue a distress warrant as provided under sub-section (3) of Section 125 of the Code, and the execution application is time-barred as it is filed beyond one year.
He urged that the revision petition be allowed.
7. The learned counsel for the respondents defended the impugned proceedings and submitted that there is no error warranting interference by this Court.
8. The two questions that emerge for consideration are:
(i) Whether the Family Court has exceeded its jurisdiction by sentencing the revision petitioner to imprisonment for a period of ten months; and (ii) Whether the Family Court ought to have followed the procedure prescribed under Section 421 of the Code, as postulated under Sub-Section (3) of Section 125 , before sentencing the revision petitioner to imprisonment. Question No.1
9. The respondents had filed M.C. No.21/2021 under Section 125 of the Code against the revision petitioner for maintenance. The application was allowed on 19.10.2022, directing the revision petitioner to pay the respondents Rs.8,000/- per month from the date of filing of the petition, i.e.,12.03.2021. Neither did the revision petitioner challenge the order nor pay the maintenance allowance. Accordingly, the respondents filed the execution application to recover an amount of Rs.1,76,000/- being the arrears of maintenance allowance from the date of filing of the original application till the date of filing of the execution application.
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