IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 RPFC.No. 259 of 2008() -------------------------------- MC.317/2001 OF THE FAMILY COURT, KOZHIKODE .................... PETITIONER/RESPONDENT --------------------------------------- SOMAN,S/O.NARAYANAN NAMBIAR, C.NO.5831, CENTRAL PRISON, KANNUR. BY ADV. SANGEETHA LAKSHMANA(STATE BRIEF) RESPONDENTS/PETITIONERS ------------------------------------------ 1. N.P.MAIDHILI, AGED 39 YEARS, D/O.KRISHNAN NAIR, NOCHAMPARAMBATH VEEDU, KURUVATTOOR AMSOM DESOM, P.O.PARAMBIL, MERIKUNNU (VIA), KOZHIKODE. 2. ANJU, MINOR, AGE 7 YEARS, REP. BY GUARDIAN (N.P.MAIDHILI) ADV. SRI.K.M.FIROZ FOR R1 & R2 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ R.BASANT, J ------------------------------------ R.P.F.C. No.259 of 2008 ------------------------------------- Dated this the 26th day of September, 2008 ORDER Petitioner, who is undergoing sentence in prison, has preferred this revision petition through prison authorities. He has been sentenced under Section 125(3) Cr.P.C to undergo imprisonment consecutively for a period of 32 months as per separate orders passed in 4 petitions. The claimants had filed an application under Section 125 Cr.P.C. Maintenance was ordered initially @ Rs.350/- and Rs.250/- per mensem to the claimants - wife and child of the petitioner. Later an application for enhancement was filed and as per the order passed in M.C.No.317 of 2001, maintenance was enhanced to Rs.1,000/- in all (Rs.500/- per mensem to each of the claimants). For a period of 39 months from 13.06.04 to 12.09.07, the amounts due were not paid. This obliged the claimants to seek execution of the order before the Family Court and the claimants filed 4 different applications. In those applications - i) C.M.P.No.431 of 2005, ii) C.M.P.No.1707 of 2005, iii) C.M.P.No.1295 of 2006 and iv) C.M.P.No.1464 of 2007, maintenance was claimed for 9 months, 9 months, 10 months R.P.F.C. No.259 of 2008 2 and 11 months respectively. Attempts were made to recover the amount and it is seen that a total amount of Rs.6,800/- had been recovered/paid. The balance amount of 32 months' remain unpaid. The learned Judge of the Family Court, by the impugned orders, has sentenced the petitioner under Section 125 Cr.P.C to undergo imprisonment for a period of 3 months, 8 months, 10 months and 11 months respectively (32 months in all). 2. The petitioner claims to be aggrieved by the impugned orders. This Revision Petition has been preferred through prison authorities. The services of a State Brief Counsel was made available to the petitioner. The respondent has entered appearance. Arguments have been heard. 3. I shall ignore the technicality that one revision has been filed to challenge the orders in 4 different petitions. In the circumstances of the case, I am satisfied that the said inadequacy can be ignored. 4. It is actually the learned counsel for the respondents who fairly pointed out that there was a specific assertion in an affidavit filed in C.M.P.No.1707 of 2005 (that affidavit is seen dt.18.10.06) that the petitioner herein has rights over 28 cents of land in Sy.No.61 (Re Survey No.5/4). The learned counsel for the respondents/claimants submits that the said affidavit which R.P.F.C. No.259 of 2008 3 is annexed as item 4 in the index clearly shows that the petitioner has landed properties or fractional rights in landed properties from which attempt can be made to recover the amount. 5. I extract Section 125(3) Cr.P.C below: “125. Order for maintenance of wives, children and parents, --- (1) .......................................... (2) .......................................... (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extent to one month or until payment if sooner made: [Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: [Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may R.P.F.C. No.259 of 2008 4 consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation - If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.” (emphasis supplied) 6. It is clear that sentence can be imposed only for the amount remaining unpaid after execution of the warrant. Warrants must be issued under Section 421 Cr.P.C both for attachment and sale of movable and immovable properties of the defaulter. The records do not show that any attempt was made to issue of a warrant under Section 421(1)(b) Cr.P.C against the above said item of property which, according to the respondents/claimants, the petitioner has. If that be so, certainly, the procedure adopted by the court below is not correct. 7. I am, in these circumstances, satisfied that the impugned orders can be set aside and the learned Judge of the Family Court can be directed to dispose of these petitions afresh after taking necessary steps under Section 421 (1) Cr.P.C to recover the amounts by issue of a warrant to the District Collector. R.P.F.C. No.259 of 2008 5 8. In the result: i) This revision petition is allowed; ii) All the 4 impugned orders -- 1) C.M.P.No.431 of 2005, 2) C.M.P.No.1707 of 2005, 3) C.M.P.No.1295 of 2006 and 4) C.M.P.No.1464 of 2007, are set aside. iii) The petitioner shall forthwith be released from custody. The Family Court shall now dispose of all the 4 petitions afresh in accordance with law. iv) The parties are directed to appear before the Family Court on 10.11.2008 to continue the proceedings; v) Issue copy of this order to the court below and also to the prison authorities. The petitioner shall be released from custody forthwith. He shall be directed by the prison authorities and the Family Court to appear before the court on 10.11.2008 to continue the proceedings. 9. Needless to say, the Family Court must make every endeavour to expeditiously complete the proceedings. The period of imprisonment already undergone by the petitioner shall be taken note of by the Family Court while passing fresh orders, if the amounts are not recovered. (R.BASANT, JUDGE) R.P.F.C. No.259 of 2008 6 rtr/-