IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 Crl.MC.No. 944 of 2009() ------------------------ AGAINST THE ORDER IN CMP.245/2007 IN CMP.20/2009 of IN MC 297/00 OF FAMILY COURT, NEDUMANGAD) .................... PETITIONER(S): RESPONDENT ------------------------------------- MURUKESAN ASSARI, S/O.KRISHNAN ACHARI, PUTHUVALVILA PUTHEN VEEDU,PONNARA NAGAR, VALLAKKADAVU, MUTTATHARA VILLAGE, THIRUVANANTHPURAM. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.P.K.NIJOY RESPONDENT(S): PETITIONER ---------------------------------- 1. VISAMMA, D/O.AMMUKUTTY AMMA,PAPPANATHU PANAVILA VEEDU,AMBALATHINKALA.PO,KULATHUMMAL VILLAGE,KATTAKADA, THIRUVANANTHAPURAM. 2. STATE OF KERALA REP BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRL.M.C. NO. 944 OF 2009 = = = = = = = = = = = = = = = Dated this the 17th day of March, 2009. O R D E R This petition is filed with a prayer to set aside Annexures 4 and 5, i.e. CMP 245/07 and CMP 20/09 in M.C.297/00 of Family Court, Nedumangad. Annexure 4 is for the default from 1.11.06 to 31.10.07 and Annexure 5 is for the default from 28.1.2008 to 28.1.2009. As per the order in the case the present petitioner is directed to pay a monthly allowance at the rate of Rs.500/- to the wife. On an earlier occasion as per the order in CMP 480/05 an application was moved for realisation of maintenance of Rs.6,000/- accrued during the period 28.2.2002 to 28.2.2003. The M.C. Was disposed of on 31.7.2001. As per the CMP since the amount was not paid he was sentenced to undergo imprisonment for 6 months. 2. Now the learned counsel for the petitioner would contend before me in implementation of the order passed by the Court he has been sentenced to undergo simple Crl.M.C. 944 OF 2009 -:2:- imprisonment for a period of 6 months and therefore no further action will lie for breach of the order of the Court. I feel the said argument cannot be accepted in the light of the decision of this Court reported in Mohammed Kutty v. State of Kerala (1984 KLT 835). This Court in that case held that, “The power to sentence under S.125(3) is in respect of the whole or any part, of each month's allowance defaulted and therefore for the default in respect of each month, there can be a sentence of imprisonment up to one month. It is not correct to assume that the power of Magistrate is to impose only a month's imprisonment irrespective of the duration of the arrears of maintenance. A month's imprisonment for every month's default is the maximum penalty under S.125 (3), and not a maximum of a month's imprisonment for the total default. A month's imprisonment for every default is not the rule and sentencing cannot be mechanical. The Court has to apply its mind, consider the circumstances of each case and then decide Crl.M.C. 944 OF 2009 -:3:- about the quantum of punishment, having due regard to the statutory limit of the maximum punishment of one month for each default.” 3. So the order of maintenance works out continuously unless and until it is varied or set aside. The law presumes a maximum punishment or one month for default of one month's default of maintenance. So one cannot find fault when applications are filed within statutory limitage for the reason that in every 12 months it has to be filed otherwise it will get time barred. So Annexures 4 and 5 are perfectly maintainable and the only question that has to be considered by the Court is what shall be the reasonable order taking into consideration the facts and circumstances of the case put forward by the respective parties. So with a direction to consider those applications in that background the Crl.M.C. is dismissed. M.N. KRISHNAN, JUDGE. ul/-