SANTHOSH Vs. STATE OF KERALA

JUDGEMENT

(1.) Section 125 of the Cr.P.C. provides for order for maintenance of wives, children and parents. Sub-section (3) of S. 125 provides that if any person ordered to pay maintenance fails without sufficient cause to comply with the order, the 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 and expenses of proceeding as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. The first proviso to this sub-section provides that no warrant shall be issued for the recovery of any amount due under S. 125(3), unless application is made to the court to levy such amount within a period of one year from the date on which the amount became due. The consequences that will visit on a husband who does not pay maintenance to the wife in full or part, despite a warrant issued by a Magistrate calling upon him to pay the dues, came up for consideration before this Court in Sundaran v. Sumathi, 2006 3 KerLT 725 . In that case, relying on the judgment of the Apex Court in Shahada Khatoon v. Amjad Ali, 2000 1 KerLT 696 , it was contended that irrespective of the number of defaults that are committed in paying each month's maintenance, in S. 125(3) there is a cap of one month on the total period of imprisonment that can be imposed and that therefore, the sentence of imprisonment ordered by a Magistrate for more than one month is illegal. These contentions were answered by the learned Judge thus:

(2.) In so far as these cases are concerned, these are filed by persons who admittedly have committed default in paying the maintenance. The petitioner in R.P. (F.C.). 34/10 committed default in paying monthly allowance for a period of 12 months and the Family Court, Kozhikode sentenced him to undergo simple imprisonment for a period of six months. Similarly, the petitioner in R.P. (F.C.). 231/10 committed default in paying maintenance payable for 67 months and the Family Court, Malappuram sentenced him to undergo imprisonment for a period of 20 months. In so far as the petitioner in R.P. (F.C.). 89/10 is concerned, he was sentenced to undergo imprisonment for a period of 17 months. Similar is the case with the other petitioners as well.

(3.) When these cases came up for consideration before a learned single Judge of this Court, relying on the provisions of S. 125(3) Cr.P.C., it was contended that if the said provision is understood in the light of the Apex Court judgment in Shahada Khatoon , irrespective of the number of defaults, the Magistrate does not have the power to order imprisonment for more than one month, provided a claim is made in one execution petition. The learned Judge accordingly considered the matter and prima facie found that the principles laid down by the Apex Court in Shahada Khatoon supports the contention raised and also found support to that view in the judgments of the Allahabad High Court and the Andhra Pradesh High Court in Dilip Kumar v. Family Court, 2000 CrLJ 3893 and Abdul Gafaoor v. Hameema Khatoon, 2004 CrLJ 1280 respectively. On that basis, doubting the correctness of this Court's judgment in Sundaran and to resolve the conflicting views, these matters were referred by the learned single Judge by his order dated 6.8.2010. It is accordingly that the matters came to be listed before us.