IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 RPFC.No. 144 of 2008() ---------------------- AGAINST THE ORDER DATED 12/12/2007 IN CMP. 562 /2007 IN MC.19/2003 of FAMILY COURT, KOZHIKODE .................... : PETITIONER --------------------------- P.SANTHOSH KUMAR, C.NO.5627, CENTRAL PRISON, KANNUR. BY ADV. ADV.PREETHA .P.S. RESPONDENTS: ------------- 1. STATE OF KERALA. 2. SABITHA.N.M, 26 YEARS, D/O.SURENDRAN, NEDUMPURATH MEETHAL HOUSE, PANTHEERANKAVU.P.O, KOZHIKODE. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB SMT.T.RESMI DAMODARAN FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ R.P.F.C No.144 of 2008 ------------------------------------- Dated this the 25th day of June, 2008 ORDER This R.P.F.C is filed by the petitioner who is undergoing a sentence of imprisonment as per order of the Family Court under Section 125(3) Cr.P.C. There was default in payment of a total amount of Rs.51,000/-, ie. the total amount due for a period of 51 months @ Rs.1,000/- per mensem. That amount was not paid. The same could not be recovered. It is, in these circumstances, that the learned Judge of the Family Court proceeded to pass the impugned order sentencing the petitioner to undergo S.I for a period of 12 months only. 2. Solemnisation of the marriage is not disputed. The petitioner raises a contention that his wife was insane and not mentally sound on the date of marriage. There is no decree for nullity of marriage. The wife claimed maintenance and the court proceeded to pass an exparte order directing payment of maintenance. That order was passed on 1.1.07. In that order, maintenance is directed to be paid @ Rs.1,000/- per mensem from 21.01.03 ie. the date of the petition. It is submitted at the Bar that the petitioner had made an attempt to get the exparte order set aside. That attempt did not admittedly succeed. R.P.F.C No.144 of 2008 2 3. The petitioner did not make the payment and it is in these circumstances that the claimant/wife approached the Family Court with a prayer for execution of the order. The precise date of filing of the petition for execution is not made available. That does not appear to be relevant as the impugned order was passed on 12.12.07. Even reckoning the date of the impugned order which was passed on 12.12.07, the claim for execution was certainly within a period of 12 months from the date on which the amount had become payable and due as per the exparte order dated 1.1.07. 4. The learned Judge of the Family Court, though he found that an amount of Rs.51,000/- is due as maintenance for a period of 51 months and the entire amount could have been recovered under Section 125(3) Cr.P.C, took the view that only a sentence of S.I for a period of 12 months need be imposed. Accordingly the learned Judge proceeded to pass the impugned order dated 12.12.07. 5. The petitioner has preferred this petition through prison authorities. Services of a legal aid/State Brief counsel has been made available to him. The counsel has been heard. The learned counsel for the petitioner assails the impugned order on two grounds. R.P.F.C No.144 of 2008 3 6. First of all it is contended that the prayer for execution is barred by limitation as the same has been filed claiming maintenance for a period exceeding 12 months - to be precise, 51 months. 7. I find no merit in this contention at all. The embargo against issue of warrant under the first proviso to Section 125(3) Cr.P.C comes into play only if the application is not made within a period of one year from “the date on which it became due”. The amount in this case, as already stated, became due only with the passing of the exparte order under Section 125 Cr.P.C on 1.1.07. The application for execution was filed definitely prior to 12.12.07, the date of the impugned order. Even reckoned with reference the date of the impugned order the petition for execution must be held to be maintainable and not barred by the first proviso to Section 125(3) Cr.P.C. That contention cannot succeed. 8. The learned counsel for the petitioner then contends that leniency should have been shown on the question of sentence. The counsel submits that it is a fact that the wife was mentally unsound even prior to the date of the marriage and in these circumstances, at any rate, imposition of the sentence of S.I for a period of 12 months, which according to the counsel is the maximum possible, is not justified. R.P.F.C No.144 of 2008 4 9. I am unable to accept this contention. The maximum sentence that can be imposed in the instant case as held in Narayanan v. State of Kerala [2008 (1) KLT 852] is not 12 months, but 51 months, provided, the application has been made within 12 months of the date on which the arrears of 51 months fall due. I have already noted that the amount fell due only as per order dated 1.1.07 and therefore the maximum sentence that can be imposed is not S.I for a period of 12 months, but S.I for a period of 51 months. Leniency has been shown to the petitioner. Though imprisonment for a period of 51 months could have been imposed, the learned Judge of the Family Court had indulgently imposed only a sentence of S.I for a period of 12 months. I am not persuaded to agree that, in the facts and circumstances of this case where 51 months' maintenance is found to be in arrear and not a pie has has been paid by the petitioner, the said sentence is excessive. 10. No other contentions are raised. I am satisfied that this R.P.F.C, in these circumstances, deserves to be and is hereby dismissed. (R.BASANT, JUDGE) rtr/-