IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 RPFC.No. 239 of 2008() ---------------------- CMP.23/2007 OF THE FAMILY COURT, KANNUR. .................... PETITIONER --------------------------- M.MUHAMOOD.M., S/O.ABDUL RAHIMAN, C.NO.5764, CENTRAL PRISON, KANNUR. (S/O.ABDUL RAHIMAN, AGED 50 YEARS, MUKRIKOOTAM HOUSE,PAYYANNUR AMSOM, THAYINERI DESOM, P.O. PAYYANNUR, KANNUR DIST. BY ADV. SRI.MANJU ANTONY(STATE BRIEF) RESPONDENTS: RESPONDENTS ------------------------ 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KHADEEJA.T.P., D/O.K.MOOSSAN, AGED 36 YEARS, ETTIKULAM.P.O., RAMANTHALI.VIA., KANNUR DIST. 3. JALEEL.T.P., AGED 13 YEARS, (MINOR) S/O.MAHAMOOD, STUDENT. 4. NOUFIL.T.P., AGED 11 YEARS, (MINOR) S/O.MAHAMOOD, STUDENT. (RESPONDENTS 3 & 4 ARE MINORS, REP., BY THEIR LEGAL GUARDIAN MOTHER THE SECOND RESPONDENT KHADEEJA.T.P.) BY ADV. SRI.PHILIP M.VARUGHESE FOR R1 TO 3 THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 239 of 2008 ------------------------------------------------- Dated this the 22nd day of September, 2008 ORDER In this revision petition preferred through the prison authorities and with the help of the State Brief counsel whose services were assigned to the petitioner, the revision petitioner assails the orders passed under Sec.125(3) Cr.P.C. sentencing him to undergo imprisonment for a period of two years (24 months) and 3 months respectively in two execution petitions filed under Sec.128 Cr.P.C. 2. The petitioner had suffered the order dated 24/2/01 in M.C.No.56/2000. He was directed to pay maintenance at the rate of Rs.500/- each to the three claimants who are his wife and two minor children. That order was challenged in revision and the learned Sessions Judge had granted an order of stay subject to conditions. The revision petition was disposed of R.P.(FC) No. 239 of 2008 -: 2 :- long later. On 8/8/06, the impugned order was set aside subject to condition. That condition was not complied with and the impugned order therefore became enforcible. It is accordingly that the claimant filed two applications for execution i.e., C.M.P. Nos.23/07 and 907/07. In C.M.P.No.23/07, the claim was made for an amount of Rs.1,08,000/- payable as maintenance for the period from 30/5/00 to 30/10/06 deducting the amount of Rs.7,500/- which had already been paid. The balance amount of Rs.1,08,000/- was claimed. No payment was made in that application and the learned Judge of the Family Court for such default of payment of 72 months of arrears had directed that the petitioner must undergo imprisonment for a period of 24 months. 3. The later application was filed claiming amounts due for a period of 12 months from 1/11/06 to 30/10/07. In both matters, no amount was paid and it was, in these circumstances, that the impugned order was passed sentencing the petitioner to undergo imprisonment for a period of 24 months (from 30/5/00 to 30/10/06) in C.M.P.No.23/07 and for a period of 3 months for default in making the payment for the period from 1/11/06 to 30/10/07. 4. There is no question of limitation as the applications have been filed within 12 months from the date on which the amounts payable in each of the two petitions became payable R.P.(FC) No. 239 of 2008 -: 3 :- after the vacation of the order of stay passed in the Crl.R.P. The court below has imposed only a sentence of 24 months and 3 months respectively for the default of payment of maintenance for a period of 72 months and 12 months respectively. 5. In any view of the matter, I am not persuaded to agree that the sentence imposed is excessive. The same does not suffer from any legal defect. Except a plea for leniency, no other contentions are raised. 6. The learned counsel for the petitioner submits that there may be an observation that if the proportionate payment is made, the petitioner shall be entitled for release without the obligation to undergo the remaining period of sentence. That position is covered by the specific provisions of the Code. The petitioner can, needless to say, pay the amount and claim premature release without the obligation to undergo imprisonment for the proportionate remaining period. 7. This RP(FC) is, in these circumstances, dismissed. Communicate copy of this order to the petitioner through prison authorities forthwith. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge R.P.(FC) No. 239 of 2008 -: 4 :-