Imprisonment for non-payment of maintenance cannot exceed 12 months under Section 125(3) Cr.P.C.

O R D E R

This revision petition is filed from the Central Prison, Kannur wherein the revision petitioner is undergoing imprisonment pursuant to an order passed by the Family Court, vide its order dated 3.7.2009 in CMP No.310 of 2006. The revision petitioner is the respondent in M.C.No.71 of 2005 of the Family Court, Kasaragod and while disposing of the said petition for maintenance, by order dated 14.2.2006, the Family Court directed the revision petitioner to pay Rs.2000/- per month to the claimant, who is the wife of the revision petitioner as maintenance.

2. Since there was failure on the part of the revision petitioner to make payment, the claimant approached the Family Court under Section 128 of the Cr.P.C. for execution of the order. Thus, initially, she filed CMP No.310 of 2006 for execution of the order.

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That petition was closed on 3.7.2009 by sentencing him to undergo imprisonment for 18½ months and there was also a direction to produce him on the expiry of the said sentence so ordered. At the time of passing the above order, another CMP was pending i.e.,CMP No.209 of 2008, which is seen closed for the time being. Now, the petitioner challenges his imprisonment pursuant to the order dated 3.7.2009 in CMP No.310 of 2006. As the revision petitioner is undergoing imprisonment, the Registry has appointed Sri.Luiz Godwin D'couth as State Brief. Heard Sri.Luiz Godwin D'couth and learned Public Prosecutor appearing for the respondent.

3. Learned counsel for the petitioner, on the strength of the decision of this Court reported in Sundaran v. Sumathy (2006(3) KLT 725) and in the light of the provisions contained in Section 125(3) of the Cr.P.C., submitted that the order of the Family Court is illegal and irregular and liable to be set aside. The learned counsel for :-3-:

the respondent submitted that though there is an order in favour of the respondent for maintenance, so far no amount, except Rs.5000/-, was paid by the revision petitioner.

4. I have carefully perused the materials available on record and heard the counsel for the parties.

5. On a perusal of the order dated 3.7.2009 in CMP No.310 of 2006, it is crystal clear that the revision petitioner is sentenced to 18½ months imprisonment for non-payment of arrears of 18½ months. Section 125(3) is very clear that no order can be passed for the execution of the arrears, beyond a total period of 12 months. Therefore, the order of the Family Court in CMP No.310 of 2006 is not legally sustainable. In the light of the above finding, the revision petitioner is entitled to get release on the expiry of 12 months imprisonment. The present order passed by the Family Court is against the provision and therefore, the revision petitioner is entitled to get released forthwith. I make it clear that it is open to the court below to pass fresh :-4-:

orders upon the execution petition in accordance with law, especially in the light of the decision referred above.

In the result, this revision petition is allowed directing the Superintendent of Jail, Central Prison, Kannur to release the petitioner forthwith on his executing a personal bond for a sum of Rs.5,000/- (Rupees Five Thousand only) to the satisfaction of the releasing Officer. The Registry is directed to send a copy of this order forthwith to the Superintendent of Central Prison, Kannur.

The R.P(FC) is allowed.

sd/-

V.K.Mohanan, Judge MBS/

-true copy-

P.S.TO JUDGE.

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V.K.MOHANAN, J.

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Crl.R.P.NO. OF 200 :-6-:

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O R D E R

DATED: -10-2009 :-7-: