IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 RPFC.No. 184 of 2008() ---------------------- AGAINST THE ORDER IN CMP.750/05,564/04,610/06,1085/2007 IN MC.227/2003 OF THE FAMILY COURT, KOZHIKODE. .................... APPELLANT/PRISONER. --------------------------------------- CHANDRAMOHAN,C.NO.4938, CENTRAL PRISON, KANNUR. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH RESPONDENT(S): --------------- 1. GIRIJA, D/O. KRISHNAPILLAI VADAKKILLAM, RARICHAN ROAD, KOZHIKODE. 2. NISHA, D/O. CHANDRA MOHAN, DO 3. ATHIRA, DO. 2ND AND 3RD MINOR PETITIONERS REP. BY GUARDIAN 1ST PETITIONER. 4. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R4 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 184 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of January, 2009 O R D E R The petitioner has suffered an order under Section 125 Cr.P.C. obliging him to pay maintenance at the rate of Rs.3,000/- p.m. to his wife and two minor children from 16.6.2003, the date of the petition in M.C. 227 of 2003. That order was passed on 18.12.2003. Four petitions were filed for execution of that order. Total period of default covered by these four petitions was 46 months. The learned Judge of the Family Court took note of the fact that an amount of Rs.10,000/- had been paid. The two minor children had allegedly become majors and in the third and fourth applications, execution was sought only of the order so far as it relates to the wife. No payment was made and as per orders passed in two applications on 1.6.2007 the petitioner was sentenced under Section 125(3) Cr.P.C. to undergo imprisonment for a period of 9 months and 12 months respectively. By later orders dt. 22.6.07 and 31.8.2007 he was sentenced to undergo imprisonment for a further period of 12 months and 12 months respectively. The petitioner is thus undergoing imprisonment from 1.6.2007. 2. The petitioner has preferred this revision petition through the prison authorities. Services of a State Brief counsel was made available to the petitioner. Subsequently a counsel has entered appearance and he has advanced arguments on behalf of the petitioner. 3. According to the learned counsel for the petitioner the impugned orders are incorrect, wrong, unjust and harsh. The counsel raises a contention that the petitioner, as a matter of fact, had paid a total amount of Rs.75,000/- Credit has been given to an amount of Rs.10,000/- by the learned Judge of the Family Court. But for the balance amount of Rs.65,000/- paid (Rs.50,000/- on 13.4.06 and Rs.15,000/- on 4.5.06) no credit has been given. This payment was actually made by cheques, it is submitted. Receipts duly executed by the first claimant wife duly attested by witnesses are available with the petitioner and those documents are produced before this Court. It is prayed in these circumstances that the sentence imposed on the petitioner is unjust and harsh. There may be a direction to the learned Judge of the Family Court to consider the matter afresh. 4. The learned counsel for the petitioner submits that the first claimant is already before the Family Court with a later application for execution of the order. In these circumstances the petitioner, who is remaining in custody from 1.6.2006, may not be compelled to remain in custody any longer awaiting issue and return of notice to the respondent. Appropriate directions may be issued, it is prayed. 5. I am ignoring the technicality that one revision petition has been filed to assail four different orders. I find merit in the submission of the learned counsel for the petitioner that the question whether as a matter of fact a further amount of rs.65,000/- had actually been paid or not deserves to be considered. This is notwithstanding the fact that the petitioner had not raised such specific plea before the learned Judge of the Family Court when the impugned orders were passed. The genuineness of the receipts has to be got to be ascertained in detail and the response of the claimant has to be ascertained. 6. Learned counsel for the petitioner further submits that even going by the admitted version of the claimant, second and third claimants attained majority long earlier and the petitioner is not liable to continue to pay maintenance to them during the relevant period. That contention also deserves to be considered. The counsel further submits that execution has been claimed in the third and fourth petitions for the period during which the petitioner was admittedly in prison as per order dt. 1.6.2007. That aspect has also not been taken into consideration by the learned Judge of the Family Court. In these circumstances the only prayer made is that the impugned orders may be set aside and the learned Judge of the Family Court may be directed to dispose of all the four petitions afresh giving opportunity to the petitioner to substantiate his contentions: a) that a further amount of Rs.65,000/- had already been paid as per receipts dt. 13.4.06 and 4.5.06; b) that the minor children had attained majority and the petitioner is not entitled to pay maintenance to them after the dates on which they attained majority. c) At least for the period during which the petitioner was in custody undergoing imprisonment he should not be reckoned as having wilfully defaulted payment. d) At any rate, the petitioner is entitled to leniency and merely because it is legally competent to impose a sentence of one month for default in payment of maintenance for one month or part of it, the maximum sentence need not necessarily be imposed. 7. I am satisfied that the request can be accepted. I take note of the fact that the petitioner has been remaining in custody for a period exceeding 19 months(from 1.6.07). I am satisfied that this revision petition can be allowed. 8. In the result: a) This revision petition is allowed. b) The impugned orders i.e. i) dt.1.6.07 in CMP 564 of 2004, ii) dt.1.6.07 in CMP 750 of 2005, iii) dt. 22.6.07 in CMP 610 of 2006 and iv) dt.31.8.07 in E.P.(Crl.) 1085 of 2007 are hereby set aside. c) The learned Judge of the Family Court is directed to dispose of all these four applications afresh in accordance with law giving the petitioner an opportunity to raise and substantiate his contentions. d) The petitioner is said to be in custody . He shall be released from custody forthwith. He shall appear before the learned Judge of the Family Court to continue the proceedings on 24.2.2009. If he does not appear the learned Judge can proceed to dispose of the petitions afresh on the basis of the materials available and placed before court. e) The receipts dt.13.4.06 and 4.5.2006 produced before this Court shall forthwith be forwarded to the Family Court along with a copy of this order. 9. Hand over the order. (R. BASANT) Judge tm