KARTHIYAYANI Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge, quilon recommending the modification of the order passed by the Sub-Divisional magistrate, Adoor, in Miscellaneous Case 21 of 1963 of that court.

(2.) THE revision counter-petitioner moved the sub-Divisional Magistrate, Adoor for the realisation of arrears of maintenance ordered to be paid by the revision petitioner to her for the maintenance of their two minor children. THE petitioner contended that as per a mutual understanding he had executed Ext. D-1 deed authorising her to appropriate the income from some properties in lieu of cash payment and as such he was not liable to pay maintenance. THE learned Magistrate found the property settlement was not valid and had not taken effect. He therefore ordered the payment of arrears of maintenance and in default of payment of the whole or part of it the petitioner was to undergo imprisonment for six months. THE matter was taken up in revision before the Additional Sessions Judge of Quilon who while rejecting the many objections to the lower court order raised by the petitioner held that the learned Magistrate went wrong in ordering unconditional imprisonment. THE learned judge therefore has recommended the modification of the said order.

(3.) THE plain meaning of the words seems to be that a person is liable in default of payment to imprisonment for a term not exceeding one month for each breach of the order. THE order here is that a certain amount of money be paid each month. For every breach of the order, i. e. for every default in the monthly payment, the petitioner becomes liable to imprisonment for a term not exceeding one month. This is the interpretation put on the provision by many of our High Courts. A Full Bench of the Bombay High Court consisting of Chief Justice Chagla and Gajendragadkar and Vyas, JJ. held that a magistrate was right m sentencing the defaulter to be imprisoned for a term of 15 days in respect of each month for which the allowance remained unpaid (vide air. 1938 Bombay 99 ). A similar view had been expressed by a number of other courts also (vide AIR. 1938 Allahabad 386 (F. B.), AIR. 1941 Rangoon 135 and 247, I. L. R. 20 Madras 3 and I. L. R. 25 Calcutta 291 ).