IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 RPFC.No. 461 of 2009() ---------------------- MC.261/2006 of FAMILY COURT, KOZHIKODE .................... PETITIONER(S): ------------------------- DAYANANDAN, C.NO.7145, CENTRAL PRISON, KANNUR. BY ADV. MR.ADEEP ANWAR(STATE BRIEF) RESPONDENT(S): ----------------------------- 1. O.SHERLY,AGED 34 YEARS, D/O.JAYAN, “SOBHA”, THIRUVANNUR NADA, POST THIRUVANNUR, KOZHIKODE TALUK. 2. JAYAKRISHNAN, S/O. O.SHERLY, AGED 5 YEARS (MINOR), ...DO..DO.... REP. BY 1ST PETITIONER. BY ADV. SRI.E.NARAYANAN THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = R.P.(F.C.) NO. 461 OF 2009 = = = = = = = = = = = = = = = Dated this the 17th day of February, 2010. O R D E R This revision is preferred from the jail in a maintenance case. The husband is the revision petitioner. The husband was ordered to pay a maintenance to the wife at the rate of Rs.1,000/- per month and to the child at the rate of Rs.500/- per month. The order was passed on 4.9.2007 and it related back from the date of petition namely 12.9.06. A CMP was filed for execution on 10.10.08 and the Family Court ordered imprisonment for 24 months for default of payment of Rs.37,500/-. While undergoing imprisonment, the revision has been preferred challenging the very order of maintenance as well as the imprisonment. The revision petitioner has to blame himself for not prosecuting the matter because it can be seen from the proceeding papers available that he had been duly served before the Court below and he had not participated in the matter. He was also available for counselling. Thereafter he abandoned the proceedings and R.P.(F.C.) NO. 461 OF 2009 -:2:- Family Court passed the order of maintenance. He did not take any care to set aside that order and when execution petition was filed he did not pay any amount and therefore he was sent to jail. No valid reasons are coming forward for the non contest of the claimant and I find after the perusal of the order that the Family Court had applied its mind and had only awarded a reasonable maintenance amount of Rs.1,000/- to the wife and Rs.500/- to the child. Therefore the order of maintenance does not suffer from any infirmity. 2. When the CMP is filed personal notice had been served on him but he contends for the position that he has not been served. It is inaccurate for the reason the proceedings paper reveal that he was served and he did not participate and therefore order was passed to produce him arrested and thereafter he was sent to jail. Now the question which requires consideration is as per the provisions of the Cr.P.C. the maintenance ordered has to be claimed within a period of 12 months u/s 125(3) Cr.P.C. and if it is not claimed within R.P.(F.C.) NO. 461 OF 2009 -:3:- that time it will get barred. It is true that the order was passed on 4.9.2007. The order relates back to the date of petition. So the first petitioner should have claimed her amount at least within an year or from the date of passing of the order by the Family Court. Or in other words the petition could have been filed on or before 4.9.08. But the petition is filed only on 10.10.08 but so far as the minor is concerned it is a settled position that there cannot be any limitation for filing an application on behalf of the minor. So minor's claim can be for the entire period and there will not be any bar of limitation. When it is considered in that fashion it has to be held that the wife can claim only for 12 months and the child can claim for the entire 25 months which will come to Rs.24,500/-, (i.e.Rs.12,000+12,500). The revision petitioner had not paid even a single pie and thought it better to undergo imprisonment rather than to maintain his wife and child. R.P.(F.C.) NO. 461 OF 2009 -:4:- 3. Now regarding the quantum of imprisonment. It is true that under the provisions of the Cr.P.C. for one month's default there can be imprisonment for one month. This point was considered by a learned judge of this Court in the decision reported in Mohammed Kutty v. State of Kerala (1984 KLT 835). This Court held that, “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 about the quantum of punishment, having due regard to the statutory limit of the maximum punishment of one month for each default.” 4. Now sending the husband to jail continuously for default may be perfectly legal but the purport and object of the order of maintenance gets defeated when that man is permanently in prison. The object of S.125 is to provide maintenance to the wife so as to avoid her becoming a destitute. But if there is default for one month and one R.P.(F.C.) NO. 461 OF 2009 -:5:- month's imprisonment is ordered as of routine then there will not be any time for the husband to come out from the jail and do some work and pay the maintenance. One can always visualize in process of time a man may get reformed and he may have an inclination to look after his wife and son at least by making of payment of maintenance. So taking into consideration these broad aspects I am inclined to reduce the imprisonment from 24 months to 18 months and the revision petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-