IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 RPFC.NO. 28 OF 2009() -------------------------------- AGAINST THE ORDER DATED 24/12/2007 IN CMP 274 IN MC.535/1997 OF FAMILY COURT, KOZHIKODE .................... PETITIONER ----------------- MANOHARAN,C.NO.5653, S/O.CHERIYA CHOYI,CENTRAL PRISON, KANNUR. BY ADV. ADV.B.PREMOD (STATE BRIEF) RESPONDENT(S): RESPONDENT -------------------------------------------- M.GEETHA, D/O.CHATHUKUTTY, KULANGARA VAYALIL HOUSE, P.O.MAKKADA, ELATHUR (PSL), KOZHIKODE. SRI. T. ASHOK KUMAR THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.P(FC) No.28 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of July, 2009 O R D E R -------------- This revision is in challenge of separate orders passed by the Family Court, Kozhikode in enforcement of the order of maintenance in favour of the respondents. Petitioner was directed to undergo simple imprisonment for various periods, to run consecutively. Petitioner is now undergoing imprisonment. I heard counsel appointed on state brief. Learned counsel contended that distress warrant was not issued in all the petitions on which imprisonment has been ordered. It is contended that petitioner had sufficient cause for non- payment of maintenance which was not considered by the court below. 2. Though what is impugned in this revision is separate orders passed in six petitions it is seen that actually order was passed on nine petitions. There is no challenge to the petition for enforcement of order on the ground of limitation. So far as the contention that distress warrant was not issued in all the petitions is concerned, learned Judge after perusal of records stated that distress warrant was issued in one case but it was returned with the report that petitioner has no movable or immovable property for realisation of the R.P(FC) No.28 of 2009 -: 2 :- amount. Therefore it was not necessary that distress warrant ought to have been repeated in all the petitions since that will only be a futile exercise. It is then contended that the very fact that one year's time is prescribed for the respondent to enforce the order of maintenance indicate that petitioner could get time upto such period. This contention I am unable to entertain for the reason that limitation prescribed is for the respondent to make the application. I am unable to think that provision must be interpreted in such a way as to mean that petitioner will get time upto to one year to pay maintenance which would mean that the wife who was unable to maintain herself should starve for one year. True, under Section 125(3) of the Code of Criminal Procedure (for short, “the Code”) imprisonment could be ordered only when without sufficient cause petitioner has failed to comply with the order. In this case petitioner has no case that he is otherwise unable to earn. It was found while ordering maintenance under Sec.125(1) of the Code that he has sufficient means. 'Means' does not limited to visible property. It takes in the capacity to earn. In this case it is not shown by cogent reason that petitioner is not able to earn. In such situation he has failed to pay maintenance without sufficient cause. Therefore I do not find reason to interfere with the R.P(FC) No.28 of 2009 -: 3 :- order impugned directing imprisonment. 3. It is seen that total period of imprisonment ordered is for 73 months, to run consecutively. Learned counsel pointed out that if petitioner has to remain in jail for 73 months he may have to remain there for ever since petition claiming maintenance for subsequent period also would be filed. Having regard to the entire facts and circumstances of the case I am inclined to think that imprisonment for half of the period ordered by the court below is sufficient in the ends of justice. Resultantly, this revision petition is allowed in part to the extent that the period of imprisonment ordered by the learned Judge is reduced to half of that period to run consecutively. Court below shall issue modified warrant to the Superintendent of the Central Prison where the petitioner is detained. THOMAS P.JOSEPH, JUDGE. vsv