Judgment :- 1. Convict No. 3993, Mohammedkutty is undergoing imprisonment in the Cannanore Central Prison as he does not pay maintenance to a boy whom he does not recognise as his son. Behind bars, he realises that his detention is. illegal. He has, therefore, sent a petition from the prison which has come up for disposal on the judicial side. This is thus treated as a revision under S.397 of the Code of Criminal Procedure. 2. In proceedings for maintenance under S.125 of the Code, the petitioner disputed both the factum of marriage and also the paternity of the child. The Judicial Magistrate of the First Class, Kalpetta held that there was no marriage; but he is the father of the child and he was directed to pay maintenance to the child at the rate of Rs. 25/-per month with effect from 24-6-1981, the date of the application. This order was passed on 26-10-1982. 3. He did not pay the amount and an execution application to realise the amount was filed on 28-3-1983. The Magistrate directed him to pay the arrears from 24-6-1981 to 28-3-1983, for a period of 21 months. On his refusal to pay steps were taken to recover the amount as fine. The Collector reported that there was no property to be attached and thereafter the Magistrate issued an arrest warrant. He was produced on 27-9-83 and he was again given a further opportunity to pay. He refused and asserted in Court that he would not pay. The Court, therefore, sentenced him to imprisonment for 21 months. 4. The sentencing power of the Criminal Court for the recovery of the maintenance amount is the question that arises for consideration. Proviso to Sub-section (3) of S.125 of the Code says 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. The amount, in this case became due on 26-10-1982, when the Court passed the order and every month thereafter. The application was to be filed within one year from the date when the amount became due. An application filed, as in this case within the first twelve months after the order is passed by the Magistrate is thus within time. The amount, in this case became due on 26-10-1982, when the Court passed the order and every month thereafter. The application was to be filed within one year from the date when the amount became due. An application filed, as in this case within the first twelve months after the order is passed by the Magistrate is thus within time. If any application is filed subsequently, recovery of the amounts which fell due within 12 months of that application alone would be recoverable. The fact that the court had ordered the petitioner to pay maintenance from the date of application i. e. 24-6-1981 only meant that the amount was payable from 24-6-1981; but it became due when the order was passed on 26-10-1982. The arrears will thus be one lump sum due on the date of the order, i e. 26-10-1982. Time for filing the application to recover this amount thus commences only from the date of the order. Any other interpretation would impose a premium on the right of the Court to grant maintenance, for, in that event, the Court can grant maintenance, not from the date of the application for maintenance, but only for 12 months prior to the date of the order. There is no warrant for any such assumption Even if it be true, the application for execution will have to be filed on the same date as otherwise a portion will again get barred under S.125(3). S.125(3) does not admit of any such unfair interpretation to import an unjust conclusion as well 5. The next question relates to the quantum of punishment that can be imposed for recovery of arrears of maintenance. Under S.125(3), the sentence, for the whole or any part of each month's allowance remaining unpaid, after the execution of the warrant, can only be imprisonment for a term which may extend to one month or until payment if sooner made. Does this provision mean that the maximum sentence which the Magistrate can impose is only one month? The power to sentence is in respect of the whole or any part, of each month's allowance defaulted and therefore for the default in respect of each month, there can be a sentence of imprisonment upto one month. It is not correct to assume that the power of Magistrate is to impose only a month's imprisonment irrespective of the duration of the arrears of maintenance. It is not correct to assume that the power of Magistrate is to impose only a month's imprisonment irrespective of the duration of the arrears of maintenance. A month's imprisonment for every month's default is the maximum penalty under S.125(3) and not a maximum of a month's imprisonment for the total default. 6. This is the view expressed in a Full Bench ruling of the Bombay High Court in K.R. Chawda v. State of Bombay (AIR. 1958 Bombay 99) where Chagla C J. speaking on behalf of Gajendragadkar and Vyas JJ. observed thus: "The power of the Magistrate to sentence the applicant is not dependent upon the issue of the warrant, or in other words the issue of the warrant is not a condition precedent to the jurisdiction of the Magistrate to sentence the applicant. Therefore, if we read the provision with regard to the power of the Magistrate to sentence the applicant independently of the power to issue the warrant, it is clear that the power to sentence is for the whole or any part of each month's allowance 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. Now these words clearly lay down the power of the Magistrate. The power of the Magistrate is in respect of whole or any part of each month's allowance remaining unpaid to sentence the applicant for a term not exceeding one month." 7. This has been followed by the Andhra Pradesh High Court in Gangula Pratao Reddy v. Gangula Vijayalakshmi (1 (1983) Divorce and Matrimonial Cases 181). 8. I am in respectful agreement with the views so expressed. 9. However, the court has to exercise its discretion in each case and decide whether the maximum penalty should be imposed or whether a lesser punishment is sufficient. A month's imprisonment for every default is not the rule and sentencing cannot be mechanical. The court has to apply its mind, consider the circumstances of each case and then decide about the quantum of punishment, having due regard to the statutory limit of the maximum punishment of one month for each default. In this case, the court wrongly thought that the maximum punishment should automatically follow forgetting that the court has a discretion in the matter. 10. In this case, the court wrongly thought that the maximum punishment should automatically follow forgetting that the court has a discretion in the matter. 10. After the order of the Magistrate on 25-10-1982, there has been default in the payment of arrears due only for five months. The maximum punishment could, therefore, be only 5 months and not 21 months as held by the court below. Even though I would have held that in the circumstance of the case, the petitioner need be sentenced only to two months' imprisonment, in view of the fact that he has already suffered imprisonment from 27-9-1983 when he was arrested, I confirm, in modification of the sentence awarded by the lower court, the sentence of five months' Simple Imprisonment. He has already undergone this punishment. The petitioner will, therefore, be set at liberty forthwith. 11. Smt P. V. Kochu Threasia was given State Brief in this case. I place on record her assistance to this Court.