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ABDULRAHIMAN Vs. STATE OF KERALA

Judgement

 
Court:KERALA HIGH COURT

Bench: JUSTICES.S. Satheesachandran

ABDULRAHIMAN Vs. STATE OF KERALA On 22 September 2011

Law Point:
One month’s imprisonment for each month default is not sole criteria which governs Court for imposing maximum punishment to the Husband Court has to exercise its discretion judicially in fixing quantum of punishment.

 

 

JUDGEMENT

 

1. A convict, who is undergoing sentence, imposed on default of payment of maintenance ordered under Section 125 of the Code of Criminal Procedure (for short “the Code”), has sent a petition from jail challenging the punishment imposed against him on two applications moved by the claimants/respondents, his wife and children. Orders in C.M.P. Nos. 22/08 and 1443/10 passed by the learned Judge, Family Court, Kasaragod imposing sentence of imprisonment against the petitioner, for the terms fixed thereunder, are challenged in this petition. Petition sent by him has been numbered as a revision as aforesaid.

2. Since the petition has been sent from jail, I have appointed Advocate Mrs. Leela to assist the Court. Notice was ordered to be served on the Counsel, who appeared for the respondents in the Family Court, directing service through that Court. Such service has been effected as seen from the report of the Judge of the Family Court, but the respondents have not entered appearance.

3. Revision petitioner has been directed to pay maintenance to the respondents his wife and children, at different rates, which together come to Rs. 1,900 per month. On the applications moved by the respondents stating that the amount due has not been paid, the Court below (Family Court, Kasargod) has sentenced him to imprisonment. For the amount due towards the period specified in C.M.P. No. 22/08 he has been sentenced to undergo imprisonment for 10 months. Under the order passed in C.M.P. No. 1443/10 sentence of imprisonment imposed extends to a period of 19 months, as the arrears covered by that proceedings are stated to be for a period of 19 months.

4. Records being called for from the Court below and report obtained from the Superintendent, Central Prison, it is noticed that the revision petitioner has been imposed imprisonment in another proceeding also, that too, relating to the default in payment of maintenance, in C.M.P. No. 654/09, for a period of 10 months. The terms of imprisonment imposed against him in all the aforesaid three C.M.Ps. together cover a period of 40 months.

5. Going through the petition sent by the convict from the prison, I find, he has questioned the orders in all the three C.M.Ps. aforementioned awarding punishment for various terms which altogether cover a period of 40 months. With the petition he has enclosed only copies of the orders in C.M.P. Nos. 22/08 and 1443/10. As against the order in each C.M.P. imposing sentence of imprisonment, it is necessary that separate revision has to be filed. However, the challenge raised in the revision relates to imprisonment covering 40 months, ordered in three C.M.Ps., producing orders of two C.M.Ps. alone. Non-filing of revision separately and non-production of the order in one of the C.M.Ps. relating to the imprisonment imposed, has to be condoned in the given facts of the case, where the petitioner is undergoing the sentence of imprisonment and revision taken on file on a petition sent by him from jail. The legality, propriety and correctness of orders passed in C.M.P. Nos. 22/08, 654/09 and 1443/10, all of them, require to be considered in the present revision, to avoid miscarriage of justice.

6. In C.M.P. No. 22/08 arrears of maintenance were claimed as due for 12 months from 4.1.2007 to 3.1.2008. Order passed by the Court below would indicate that there was part payment of Rs. 2,000 pending the proceedings and the balance outstanding on the claim was Rs. 20,800. Still, holding that an amount for 12 months remained to be paid sentence of imprisonment of 10 months was awarded.

7. In C.M.P. No. 654/09 arrears of maintenance related to the period from 1.3.2008 to 28.2.2009. A portion of the amount on the arrears appears to have been paid during the pendency of the proceedings. The order of the Court below would show that the arrears for 10 months were due, and therefore, the revision petitioner was sentenced to undergo imprisonment for 10 months directing him to serve out that sentence after the expiry of the imprisonment awarded in C.M.P. No. 22/08.

8. In C.M.P. No. 1443/10 arrears of maintenance for the wife/1st respondent was claimed from 13.10.2009 to 12.10.2010 and for the children, respondents 2 to 5 from 13.3.2009 to 12.10.2010. In the orders passed, holding that the amount due as maintenance has been kept in arrears for 19 months, the Court below has sentenced the revision petitioner to undergo imprisonment for 19 months with direction that it shall be suffered after the expiry of the sentence imposed in C.M.P. Nos. 22/08 and 654/09.

9. Perusing the records of the case, it is noticed that after the passing of the order awarding maintenance to the respondents in M.C. No. 193/2003 at the rate of Rs. 300 to the first respondent/wife and Rs. 350 each to the children, respondents 2 to 5, there were proceedings for realisation of arrears of maintenance alleging default on the part of the revision petitioner. Petitioner has asserted in his petition that all claims towards arrears of maintenance, other than those covered by the C.M.Ps. referred to above, in which sentence of imprisonment had been awarded, which is being suffered by him, had already been cleared out. However, from the records received, no definite conclusion thereof could be formed, but, for the purpose of considering the questions involved in the present revision, orders passed in the previous proceedings referred to, as to whether arrears of maintenance relating to them had been cleared or not, is not at all material, and it can be treated as of no consequence.

10. What is disclosed by the records relating to all the three C.M.Ps. as regards the steps taken by the Court before imposing sentence of imprisonment against the revision petitioner is highly disturbing since there has been total disregard of the procedure to be followed in awarding sentence of imprisonment as punishment on default of payment of maintenance ordered, as under Sub-section (3) of Section 125 of the Code.

11. Sub-section (3) of Section 125 of the Code reads thus:

“(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 month’s [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 period of one year from the date on which it became due:
(second proviso not relevant to the case and hence omitted).”

12. Where any person, who was bound to pay maintenance by order of the Court fails to do so, in the absence of sufficient cause for non-compliance of such order, the Court may sentence such person for the whole or for the allowance remaining unpaid for a term which may extend to one month or until payment is made. However, such sentence of imprisonment is imposed against such a person only after issuing a distraint warrant for levying the amount due as arrears of maintenance in the manner provided for realisation of fine. Even before the issue of such a warrant, if we go through the above provision, the Magistrate (Judge) has to consider the question whether he has any sufficient cause for non-compliance of the order. In the previous Code, Act V of 1890, till the substitution by Act XVIII of 1923, Sub-section (3) of Section 488, which corresponds to Sub-section (3) of Section 125 of the present Code, such sentence of imprisonment on a defaulting person, who was ordered to pay maintenance could have been imposed only where it was shown that he had ‘wilfully neglected’ to comply with the order. But, after the substitution made under Act XVIII of 1923,

“failure without sufficient cause, to comply with the order” by such person is sufficient to proceed with further steps, which, no doubt, has to commence with the issue of a distraint warrant for the sum due as arrears of maintenance, as if it were a fine, and if it fails, then alone imposing on him a sentence of imprisonment, having regard to the period for which maintenance is in arrears.

13. Proceedings papers in all the three C.M.Ps. involved in the present case referred to above, disclose that before imposing the sentence of imprisonment against the petitioner, the Court below has not issued any distraint warrant. No reason whatsoever is stated why the issue of distraint warrant was dispensed with, to order the sentence of imprisonment on failure to pay the maintenance ordered to the respondents. Straightaway sentencing the defaulter husband to a term of imprisonment without following the steps for recovery of the arrears of maintenance due as if it were a fine levied following the modes prescribed under Section 421 of the Code is improper. What is further noticed from the orders passed by the Court below is that in two of the C.M.Ps. (C.M.P.Nos.22/08 and 634/09) orders were passed separately on the same day fixing various terms of imprisonment. Sentence in C.M.P. No. 654/09 was directed to be followed after the expiry of the sentence in the other CMP (C.M.P. No. 22/08). Though, on the face of the order, it would appear that there was nothing improper in fixing sentence of imprisonment separately in relation to different periods of arrears of maintenance due which have been defaulted, evidently there was total non-application of the mind by the Court in imposing the punishment. The order sheet in C.M.P. No. 22/08 would indicate that when notice in such proceedings were issued, the defaulter was already in jail as having been sentenced in a connected CMP. He was produced before the Court on 1.2.2008. During the course of the proceedings he was released on 21.8.2008. Thereafter he had made some part payments. Since he did not turn up on subsequent hearing date pursuant to issue of warrant he was arrested and produced. On such production, he was sentenced to undergo imprisonment for a period of 10 months. Similarly in C.M.P. No. 654/09 on the same day on which he was sentenced in C.M.P. No. 22/08, punishment was imposed by a separate order directing his imprisonment for l0 months with a direction to undergo the same after the expiry of the previous sentence.

14. If we go by the provision covered by Sub-section (3) of Section 125 of the Code, as already indicated, it does not contemplate of imposing a punishment of imprisonment straightaway against the defaulter on his failure to pay the maintenance ordered. Not only that, the Court has to issue a distraint warrant for realisation of the arrears of maintenance due before imposing sentence of imprisonment against the defaulter, both the issue of warrant and also imposition of sentence of imprisonment should be preceded with another requirement as to satisfaction of the Magistrate/Judge that the defaulter who had been ordered to pay maintenance, has failed to do so, ‘without sufficient cause’. True, it is for the person, who has been proceeded against, the defaulter to show cause, if any, why the drastic steps including sentence of imprisonment should not be imposed against him for non-payment of maintenance ordered. Cause is to be shown by him, and, if only it is found to be just cause, then alone he may be able to avoid the issue of distraint warrant, and, punishment of imprisonment. However, even in a case where there was failure on his part to plead or show ‘sufficient cause’, I am afraid, that would not relieve the Magistrate/Judge from examining the question whether he had ‘sufficient cause’ for non-compliance especially in a case presenting circumstances so patent and evident demanding an inquiry and finding thereof. I say so, since in the present case, after imposition for two periods of imprisonment separately in two C.M.Ps. both on the same day with direction that the sentence of imprisonment awarded in one case would follow the other, on a subsequent application, C.M.P. No. 1443/10, the defaulter was produced from the jail and thereupon, without looking into and considering the question whether the defaulter who all along continued in prison, had sufficient cause for non-compliance of the order of the maintenance due as covered in that C.M.P., the Court below had imposed on him a sentence of imprisonment for 19 months. The fact that the application has to be made in respect of arrears of maintenance due within a period of one year from the date on which it became due, no doubt, has been lost sight of by the Court below in awarding the sentence of imprisonment for 19 months, which in fact, is seen fixed with respect to the arrears of maintenance claim for the children respondents 2 to 5, for the period of 19 months in that C.M.P. What is seen from the order in C.M.P. No. 1443/10 that immediately on production of the defaulter on production warrant issued, without looking into any other aspects, but solely on the ground that arrears of maintenance are due for 19 months, he was straightaway sentenced to undergo imprisonment for such period, directing that such sentence shall be undergone by him after the expiry of the terms of imprisonment fixed in the other two petitions, C.M.P. Nos. 22/08 and 654/09.

15. If the course followed by the Court below in awarding sentence as against a defaulter is not interfered with and corrected, it would lead to a situation where once a defaulter is sentenced to imprisonment for non-payment of arrears of maintenance due, then he has to languish in prison for the rest of his life, if successive applications are moved over the maintenance claim one after the other in future and sentence of imprisonment awarded fixing one month imprisonment for each month’s default in paying the maintenance ordered. In awarding sentence of imprisonment, the Court has to exercise its discretion having regard to the facts and circumstances presented. It has to take a just decision whether the maximum penalty should be imposed or a lesser punishment is sufficient. A month’s imprisonment for every default is not the rule though it is provided under sub-section (3) of Section 125 of the Code. Sentencing cannot be mechanical and the Court has to apply its mind, looking into the facts and circumstances of the case and then to fix the quantum of punishment. Statutory limit of maximum punishment of one month for each default of a month is so provided by the Sub-section is not at all the sole criteria, which should govern the Court for imposing the maximum punishment against the defaulter, but all other circumstances connected with the case, and it has to exercise its discretion judicially in fixing the quantum of punishment. At least, where the Court below imposed the punishment in CM.P. No. 1443/10, it is evident, it had wrongly proceeded on the assumption that the maximum punishment should follow automatically, and, imposed against the defaulter. The fact that the defaulter was in jail already undergoing the sentence of imprisonment passed in the previous C.M.Ps. was not even considered by the Court below while imposing the period of imprisonment, that too far in excess of what could have been awarded under law.

16. The learned Counsel appointed, for the revision petitioner, relying on Ajithkumar v. Shyma, 2009 (3) KLT 452, has pointed out that the defaulter was in prison undergoing the sentence of imprisonment is no ground to refuse payment of maintenance for the period when he was incarcerated and so much so, imposition of punishment for the period covered by C.M.P. No. 1443/10, but, of course, only for a lesser-period of prison term, according to the Counsel, is justified. In the above reported decision, facts would indicate that the defaulter was out of prison, at least for a short period, and that was also taken note of to observe that the objection raised that during the period relating to the claim of maintenance due as arrears, he was in prison undergoing the sentence of imprisonment awarded in respect of arrears of maintenance for a previous period, cannot be treated as a ‘sufficient cause’ for his failure to pay the arrears of maintenance. However, in the present case, the facts are different. The defaulter, all along had been undergoing the sentence of imprisonment from 29.9.2010, pursuant to the orders passed in the other two C.M.Ps. Though the claim in C.M.P. No. 1443/10 related to a former period, before the commencement of the sentence of imprisonment, at the time when the sentence was awarded in that case, he has been undergoing sentence of imprisonment awarded in previous two C.M.Ps. for considerable period of time necessarily has to be taken note of by the Court as sentencing is not to be done mechanically, but having regard to the facts and circumstances presented and exercising discretion judicially.

17. In the given facts of the case where the revision petitioner has already suffered imprisonment over a period of nearly 12 months, I find, that period could be treated as adequate punishment in respect of the default committed over the claim for maintenance for the periods covered by C.M.P. Nos. 22/08 and 654/09. No further inquiry over the punishment to be meted out in respect of the default covered by such CMPs, after setting aside the orders thereof, though the sentences of imprisonment passed had been found to be improper, at this stage, after the defaulter had suffered substantial, period or imprisonment, is called for. So much so, the period of imprisonment suffered by the defaulter till now shall be treated as the sentence of imprisonment awarded in respect of the two C.M.Ps. referred to above and such C.M.Ps. shall be treated as closed. No doubt, closing of the two C.M.Ps. shall be without prejudice to the realisation of the arrears of maintenance from the assets, if any, of the defaulter by taking appropriate steps as provided by law. Sentence undergone by the defaulter shall not absolve him from his liability to pay the arrears of maintenance due which can be realised, as provided by law.

18. In respect of C.M.P. No. 1443/10 further inquiry is called for. Any sentence of imprisonment as against the defaulter, if the Court finds that there is no’sufficient cause’ for his failure to comply with the order, can be imposed against him, but only after issuing a distraint warrant. Cause, if any, shown by him, for non-payment of the arrears of maintenance due, shall be considered in exercising the discretion for awarding punishment, I say so because he has got a case that he is suffering from heart ailments. True, he has canvassed such a case to resist the claim for maintenance itself, and turning down such plea, claims of the respondents were upheld. Cause canvassed earlier to resist the claim of maintenance, normally cannot be given much merit as ‘sufficient cause’ for failure to comply with the order of maintenance. However, having regard to the provision covered, by Section 127 of the Code, enabling a person ordered to pay maintenance to seek cancellation, alteration, etc., showing the change of circumstances, in case there is any change of circumstance owing to the illness allegedly suffered by him, if canvassed for further inquiry, that aspect has also to be looked into. A person suffering from heart disease, if not getting proper medical care and attention, in course of time, is likely to have severity of that disease does not require any elucidation. His physical condition, with reference to his illness and also ability to earn for himself and the respondents, for whom, he has been ordered to pay maintenance, must be looked into, more particularly in fixing the quantum of punishment, even if his illness is not shown to be sufficient cause for his failure to pay the maintenance ordered.

19. In the result, the sentence of imprisonment passed in C.M.P. Nos. 22/08 and 654/09 against the defaulter/revision petitioner shall stand reduced to the period or imprisonment already undergone by him till now. The order imposing sentence of imprisonment against the petitioner in C.M.P. No. 1443/10 shall stand vacated and that CMP is remitted for fresh disposal, taking note of the observations made above and in accordance with law.

20. If the custody of the petitioner is not required in connection with any other case, he shall be released forthwith. The Superintendent of Central Prison, Kannur, shall instruct the petitioner, to appear before the Judge, Family Court, Kasargod, on 21.10.2011, on his release provided his custody is not required.
21. A copy of this order shall be sent to the jail for serving it on the petitioner.

22. Advocate Mrs. Leela R., appointed as Counsel for the revision petitioner, has ably assisted me in the disposal of this revision. I place on record my appreciation for her assistance to this Court.
Revision is disposed of as above.

Revision disposed of.

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