MOHANDAS Vs. JAYATHI

JUDGEMENT

(1.) A convict, who is undergoing the sentence of imprisonment on account of the default committed in paying the maintenance ordered under Section 125, Cr. P. C. in M. C. No. 775 of 2007 by the Family Court, Malappuram has filed this revision petition. In fact, it has been sent from jail. As per order dated 21-12-2007 the said M. C. was allowed and the revision petitioner herein was directed to pay monthly maintenance at the rate of Rs. 1,000/- to the first petitioner and Rs. 500/- each to petitioners 2 to 4 therein from the date of filing of the said M. C. and the first petitioner therein was authorised to receive/collect it. For enforcing the order of maintenance, the petitioners therein filed a petition under Section 128 of the Code of Criminal Procedure. Subsequently, the respondent therein/the revision petitioner herein was arrested and was produced before the Court. He was sentenced to undergo imprisonment for one year as per the impugned order passed thereon. As this petition has been sent from jail Adv. Jaishankar V. Nair has been appointed as the State Brief to conduct the case of the revision petitioner. Notice has been ordered to the respondents herein/petitioners therein. They entered appearance through counsel.

(2.) I have heard Adv. Jaishankar V. Nair, learned State Brief for the revision petitioner and also Adv. P. Shamsudeen, learned counsel for the respondents.

(3.) As noticed earlier, the revision petitioner was directed to pay maintenance at the rate mentioned above by the Family Court, Malappuram as per order dated 21-12-2007 in M. C. No. 775 of 2007. Pursuant to the impugned order, the petitioner has been sent to jail and he has been there from 31-11-2011. The learned counsel for the revision petitioner raised many a legal questions including whether on a single petition under Section 128, Cr. P. C. alleging default in payment of the maintenance for a long period the defaulter can be sentenced to undergo imprisonment for a period of more than one month holding that the liability of the husband arising out of an order passed under Section 125, Cr. P. C. to make payment of maintenance is a continuing one. The learned counsel attempted to undo the order with the support of the decision of the Hon'ble Apex Court in Shahada Khatoon v. Amjad Ali, 1999 AIR(SCW) 4880. Per contra, the learned counsel for the respondents submitted that a sentence in terms of the provisions under Section 125(3), Cr. P. C. for a term exceeding even one year is possible in view of the decision of this Court in T. K. Ramakrishnan v. Subhadra, 2009 1 KerLT 813. The learned counsel for the revision petitioner further submits that the impugned order is liable to be set aside on another ground as well. It is submitted that in the light of the decision of this Court in Abdul Rahiman v. State of Kerala and others,2011 3 KHC 931 the impugned order being one mechanically made, without any application of mind, is liable to be set aside. In that case, this Court held that in awarding a punishment for committing default in complying with the order of maintenance under Section 125(3), Cr. P. C. the Court has to exercise its jurisdiction having regard to the facts and circumstances of the case. At any rate, sentencing cannot be mechanical and the Court has to apply its mind while fixing the term of imprisonment. I am of the considered view that the other legal questions need be considered only if the impugned order survives the consideration in the light of Abdul Rahiman's case . Therefore, firstly, I may consider the sustainability of the impugned order in the light of Abdul Rahiman's case . In this context, it is to be noted that the aforesaid view in Abdul Rahiman's case is supported by an earlier decision of this Court in Mohammed Kutty v. State of Kerala, 1985 1 Crimes 702. It was held therein that a month's imprisonment for every default is not the rule and sentencing cannot be mechanical. In the case on hand the impugned order reads thus :--