IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 RPFC.No. 201 of 2011() ---------------------- AGAINST THE ORDER DATED 23/07/2009 IN CMP 399/2009 IN MC.91/2004 of FAMILY COURT, KOZHIKODE .................... PETITIONER/RESPONDENT --------------------------------------- M.P.SIDDIQUE, S/O.SAINABA, C.NO.7167, CENTRAL PRISON, KANNUR. BY ADV. SRI.PRATAP ABRAHAM VARGHESE (STATE BRIEF) RESPONDENTS/PETITIONERS ------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682031. 2. FOUSIYA, D/O.MUHAMMAD, THALAKKALAKATH, P.O.ARAKKINAR, NADUVATTAM AMSOM, DESOM, KOZHIKODE. 3. FATHIMATHUL SUHARA, (MINOR), REPRESENTED BY THE 2ND RESPONDENT, FOUSIYA. R2 & R3 BY ADV. SRI.T.G. RAJENDRAN. THIS REV.PETITION (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 28/10/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: AMG S.S.SATHEESACHANDRAN, J -------------------------------------- R.P(F.C) No.201 OF 2011 ----------------------------------------- Dated this the 28th day of October 2011 ORDER The revision has been numbered on a petition filed by a convict from Central Prison, Kannur. He is undergoing sentence awarded by the Judge, Family Court, Kozhikode, consequent to his default in paying the maintenance awarded to his wife and child in a proceeding under Section 125 of the Code of Criminal Procedure. A counsel on state brief has been appointed on behalf of the revision petitioner. 2. Notice issued, the respondents/wife and child have entered appearance. I heard the counsel on both sides. Two applications filed by the claimants - wife and child to realise the fruits of the order of maintenance led to imposition of simple imprisonment for four months each in the petitions after production of the revision petitioner from prison before the Family Court, Kozhikode. In view of the previous default committed by him pursuant to orders passed on the CMPs filed by the claimants, earlier, the revision petitioner/husband has been undergoing incarceration in prison over a period of three years. At the stage of completing nearly 14 months continuous incarceration, after ordering his production from prison before the court, in the two CMPs subsequently filed by the claimants, the learned Judge, Family Court has passed the sentence of further imprisonment for four months each R.P(F.C) No.201 OF 2011 2 against him. Petitioner in his petition has stated that he is getting only daily wages of `.21/- for the labour performed in the jail and, thus, his monthly wages is only `.630/-. Unless he is released from the jail he will not be in a position to earn for himself and, also, to provide the maintenance ordered to his wife and child, is his case for impeaching the orders passed by the court below. 2. The learned Judge, Family Court has not followed and, in fact, flouted the procedure contemplated under sub Section (3) of Section 125 of the Code of Criminal Procedure while passing sentences of imprisonment on the CMPs involved, after issuing production warrant and causing production of the revision petitioner before his court. The aforesaid sub section contemplates issue of a distress warrant and even before that the satisfaction of the Magistrate that the defaulter has no sufficient cause for the default in payment of the maintenance ordered. Even if no cause is canvassed for or shown by such defaulter if the facts presented would demonstrate that he has sufficient cause why the order of maintenance has not been complied with, then also it will not be proper for the Judge or Magistrate to impose a sentence of imprisonment against him. In the given case, the petitioner has been undergoing imprisonment continuously as part of the sentence already awarded covering a period of three years was lost sight of by the learned Judge, Family Court, when the impugned orders were passed R.P(F.C) No.201 OF 2011 3 ordering imposition of further period of imprisonment against him. In case CMPs one after the other are filed by the claimants, while he continued to be in prison, for default made subsequently, then, the result will be the incarceration of the petitioner, the defaulter in prison, through out his life. That would tantamount to all cannons of justice and, in fact, serious infringement and violation of human rights. The impugned orders passed by the Judge, Family Curt in CMP 399/2009 and CMP 61/2010 are clearly unsustainable and they are liable to be set aside. The CMPs are to be taken up for consideration afresh after providing opportunity to the petitioner to satisfy the amounts claimed under such petitions covered by the order of maintenance. That of course will be possible only after his release. Though the rights and benefits covered under the order of maintenance to the wife and child have to be zealously protected and given effect to by the court, still, it has to be noted that awarding sentences of imprisonment directing continuous incarceration of the defaulter/husband in prison would not serve any purpose nor advance the ends of justice in any manner. Court below shall pass appropriate orders on CMPs afresh taking note of the observations made above and in accordance with law. Revision is disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge