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2008 DIGILAW 120 (KER)

Narayanan v. State Of Kerala

2008-02-12

R.BASANT

body2008
Judgment : Is there a cap on the maximum sentence that can be imposed under S.125(3) of the Code of Criminal Procedure? Is it the law that a sentence exceeding 12 months can never be imposed on a defaulter in a single application for execution? These questions do arise for consideration in this revision petition. 2. This revision petition is filed by the petitioner who has suffered an order under S.125(3) of the Cr. P.C. sentencing him to undergo imprisonment for a period of 20 months for non-payment of the maintenance amount of Rs.11,400/- i.e., at the rate of Rs.300/-per mensem for 38 months. The petitioner could not engage a counsel of his own. He has preferred this petition through prison authorities. The delay was condoned and the petition was admitted. Services of a State Brief counsel was assigned for his help. Advocate Mr. N.K. Subramanian has advanced arguments on behalf of the petitioner. 3. A report of the learned Magistrate was called for. The order passed in the revision was also made available for my perusal. The respondent, though served, has not chosen to enter appearance. I have adverted to all the relevant inputs. 4. M.C. No.49/98 was filed before the learned Judicial Magistrate of the First Class, Mannarkkad, by the respondent/claimant claiming maintenance under S. 125 of the Cr.P.C. from the petitioner/her husband. The learned Magistrate by order dated 24/8/01 directed payment of maintenance at the rate of Rs.300/- per mensem from the date of the petition i.e., 16.08. The revision filed was dismissed by the Sessions Judge, Palakkad, as per the order dated 8.06 in Crl. R.P.No.37/04. 5. On 10.01, within two months from the date of the order dated 28.01, the claimant/wife filed an application for recovery of the amount of Rs.11,400/- being the maintenance payable for the period of 38 months at the rate of Rs.300/- per mensem. By then, the Family Court had been established and the application was dealt with by the Family Court under S.7 (2) of the Family Court Act. The learned Judge of the Family Court, after taking necessary steps - the amount was not paid or recovered, proceeded to pass the impugned order sentencing the petitioner to undergo simple imprisonment for a period of 20 months or till the payment of Rs.11,400/- whichever is earlier. 6. The learned Judge of the Family Court, after taking necessary steps - the amount was not paid or recovered, proceeded to pass the impugned order sentencing the petitioner to undergo simple imprisonment for a period of 20 months or till the payment of Rs.11,400/- whichever is earlier. 6. The learned counsel for the petitioner contends that in any view of the matter, the learned Judge of the Family Court could not have sentenced the petitioner under S.125(3) of the Cr.P.C. for a period exceeding 12 months. The learned counsel in support of this contention places reliance on S.125(2) of the Cr.P.C., S. 125(3) of the Cr.P.C. and its first proviso as also, the observations in para-4 of the decision in Sundaran Vs. Sumathi (2006 (3) KLT 725). It is the contention of the learned counsel for the petitioner that going by the statutory provisions and the precedents, under no circumstances can a defaulter be sentenced to imprisonment for a period exceeding 12 months for non-payment of the amount of maintenance ordered under S.125 of the Cr.P.C. in a single application. 7. It will be apposite straightaway to take note of the statutory provisions. S.125(2) of the Cr. P.C. reads as follows: “(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be." (emphasis supplied) It is clear that on the date when the order is passed, the Family Court/Magistrate has the jurisdiction to direct payment of maintenance from the date of the order or from the date of the application for maintenance. It, therefore, is evident that if the application for maintenance is not disposed of within a period of 12 months and the order is passed in the application under S.125 beyond the period of 12 months from the date of the petition, an order passed may invite the liability to pay maintenance for a period exceeding 12 months. There can be no dispute on this proposition when one considers S.125 (2) of the Cr.P.C. I now extract below S.125 (3) and its first proviso. There can be no dispute on this proposition when one considers S.125 (2) of the Cr.P.C. I now extract below S.125 (3) and its first proviso. The second proviso does not appear to be relevant for our purpose: “(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 months 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 extend 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 periodof one year from the date on which it became due." 8. A reading of the body of S.125 (3) of the Cr.P.C. makes it clear that a defaulter can be sentenced for the whole or any part of each months maintenance remains unpaid to imprisonment for a period which may extend to one month or until the payment is sooner made. It is thus beyond controversy from the simple language used by S.125(3) that if there be one months default there can be one months imprisonment. If under S.125(2) an order has been passed for payment of maintenance from the date of the petition and that order obliges payment of maintenance for a period exceeding 12 months, certainly the maximum sentence that can be imposed will be such number of months for which maintenance remains unpaid. This conclusion also appears to be very evident and unavoidable from the simple language used in S.125(3) of the Cr.P.C. 9. The first proviso to S.125(3) in this context becomes important. A careful reading of the first proviso extracted above reveals that the proviso is not intended to bring in a cap on the maximum sentence that can be imposed under S.125(3). It incorporates a rule of limitation that any application for recovery must be made within a period of one year from the date on which the amount becomes due. A careful reading of the first proviso extracted above reveals that the proviso is not intended to bring in a cap on the maximum sentence that can be imposed under S.125(3). It incorporates a rule of limitation that any application for recovery must be made within a period of one year from the date on which the amount becomes due. The crucial question is the date on which the payment becomes due. In a case where maintenance has been directed to be paid from the date of the petition, the amount though it relates to maintenance for a past period will become due only on the date of the order. To my mind, the first proviso would be certainly satisfied if execution of the claim for such amount is made within one year from the date on which the amount became due i.e., the date of the order. Therefore, even if payment relates to a period beyond the period of 12 months in the past if the amount becomes due by passing of the order, the first proviso cannot come into play if such application for execution is made within one year of the date of the order under which the payment becomes due. 10. Except in a case where such a direction is issued for payment of maintenance from the date of the order, the question which is raised in this case may not at all appear. In all such cases the claim for amount of maintenance due after the passing of the order will have to be filed within one year of the date on which the amount becomes due. In such cases, the period of sentence cannot ever exceed 12 months. But in a case like the instant one where what is claimed is the amount that has become due on the date of the order and such order directs payment of maintenance from the date of the petition, there is no cap on the maximum sentence that can be imposed and the only restriction is that sentence cannot exceed the number of months for which there is default in payment. .11. Ss.125(2), 125(3) and its first proviso, according tome, plainly mean this and nothing more than that. .11. Ss.125(2), 125(3) and its first proviso, according tome, plainly mean this and nothing more than that. The first proviso to S.125(3) is, I repeat, not intended to stipulate any cap on the maximum sentence that can be imposed for default in payment of maintenance; but it is intended only to .ensure that the application for recovery must be made within one year of the date on which the amount becomes due. So reckoned, the contention raised by the learned counsel for the petitioner very ably cannot be accepted. The crux of the contention is that inasmuch there is a liability to pay maintenance for more than a year imposed as per order passed in the S.125 application, the sentence cannot exceed 12 months at any rate. That contention is obviously not justified by the statutory provisions referred above. The first proviso to S.125 (3) cannot come to the help of the petitioner if an application for recovery has been filed within one year of the date on which the amount became due. .12. The learned counsel for the petitioner then contends that in Sundaran Vs. Sumathi (2006 (3) KLT 725) this Court has taken the view that maximum sentence imposable under S.125(3) is 12 months and under no circumstances can the imprisonment exceed 12 months. It may be true that a reading of para.4 in isolation may lead to such an erroneous impression. But a passage in a precedent cannot be read or understood divorced of the context. In that decision this Court was called upon to consider whether for each months default one months imprisonment can be awarded and whether when in one application complaint is made or default of more than one month, there is a cap that the sentence can be only for one month in the maximum. Reliance was placed in that decision in Shahada Khatoon Vs. Amjad Ali (2000 (1) KLT 696) to advance such a proposition and it is to deter and overrule that contention that the question was considered and the observations to the following effect appeared in para.4 of the said judgment. I extract para.4 below: ."4. Reliance was placed in that decision in Shahada Khatoon Vs. Amjad Ali (2000 (1) KLT 696) to advance such a proposition and it is to deter and overrule that contention that the question was considered and the observations to the following effect appeared in para.4 of the said judgment. I extract para.4 below: ."4. A reading of the statutory provision can thus leave behind no doubt that if there is a breach committed of the obligation to pay maintenance for a period exceeding one month, for default for each month, the defaulter can be sentenced to imprisonment for a period of one month. In short, if there is default for `n number of months imprisonment for n number of months can, in the maximum, be. imposed, of course, subject to the condition that `n cannot exceed 12." 13. In the above said para.4, the question which comes up for consideration in this petition did not ever arise for consideration. There was no order in that case which imposed on the husband a liability to pay maintenance for a period exceeding one year on the date when the order was passed. It would be myopic to read para.4 extracted above and then sail to a conclusion that the observation therein places a cap on the maximum sentence that can be imposed notwithstanding the number of months of-default and notwithstanding the fact that application for issue of warrant has been made within 12 months of the date on which the amount became due. 14. Inthis view of the matter, I am unable to agree with the contention of the learned counsel for the petitioner that the courts cannot impose any sentence beyond 12 months at any rate in one application. 15. The learned counsel for the petitioner then contends that leniency may be shown to the petitioner. He is sentenced to undergo S.I. for a a period of 20 months for default in payment of 38 months maintenance allowance. He is sent to prison as per order dt. 11.2007. The petitioner has not been able to make the payment. He has consequently been compelled to languish in prison from 11.2007. Leniency may be shown at any rate. The advanced age of the petitioner (63 years) may be taken into account. It is not invariable that for each months default the defaulter must be sentenced to one months imprisonment. 11.2007. The petitioner has not been able to make the payment. He has consequently been compelled to languish in prison from 11.2007. Leniency may be shown at any rate. The advanced age of the petitioner (63 years) may be taken into account. It is not invariable that for each months default the defaulter must be sentenced to one months imprisonment. The totality of circumstances can certainly be taken into consideration. It cannot be lost sight of that the person is being sent to prison solely because of his inability to pay the amount. The fact that the petitioner is continuing in custody from 11.2007 unable to make the payment may not be lost sight of. In these circumstances leniency maybe shown and the sentence imposed on the petitioner may be reduced, it is prayed. .16. I take note of the fact that not a paisa has been paid so far admittedly. The claimant/wife has .evidently been running from pillar to post. Misplaced sympathy can have no place when the court is called upon to translate the legislative compassion into tangible orders in favour of the claimants, who belong to the less privileged section of the community. I am satisfied, taking all the circumstances into account, that the sentence imposed can be reduced to S.I. for a period of 15 months. Such a direction, I am satisfied, shall meet the ends of justice eminently. 17. This Revision Petition is allowed in part. The impugned order is upheld in all other respects; but the sentence imposed is reduced to S.I. for a period of 15 months. 18. Communicate the order to the prisoner and the learned Magistrate. The learned Magistrate shall forthwith take necessary steps to issue a modified warrant.