Chandran v. K. Vasanti

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2010-01-30
Court Decision / Holding: The revision petition is allowed. The High Court held that the Family Court’s order directing imprisonment beyond 12 months is not legally sustainable under Section 125(3) Cr.P.C. Chandran is to be released forthwith on a personal bond for Rs. 5,000, with a direction to the releasing officer. The Registry is to communicate the order to the Central Prison, Kannur, and fresh orders may be passed by the executing court in accordance with law.
Final Disposition: RP(FC) allowed; petitioner to be released forthwith

Parties to the Case

Appellants / Petitioners

Chandran

Respondents

K. Vasanti

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Luiz Godwin D'Couth (State Brief)

Counsels for Respondents

• Smt. T. Sudhamani

Case Synopsis & Summary

Chandran, the revision petitioner, challenges a Family Court order directing maintenance to his wife Vasanti under Section 125 Cr.P.C. The Family Court in CMP No. 310 of 2006, while disposing of the maintenance petition (M.C.No.71 of 2005), ordered Chandran to pay Rs. 2,000 per month. Upon failure to pay arrears, execution petitions under Section 128 Cr.P.C. were initiated. The execution case (CMP No. 310/2006) resulted in an order dated 3 July 2009 sentencing Chandran to 18½ months imprisonment for non-payment of arrears, with a further directive to produce him upon expiry. A contemporaneous CMP No. 209 of 2008 was closed for the time being. Chandran contends that the order is illegal and irregular and inconsistent with Section 125(3) Cr.P.C., which bars execution of arrears beyond 12 months, and therefore he should be released after 12 months. The respondent-wife argues that despite the order in her favor, very little payment has been made (only Rs. 5,000) and that imprisonment is a valid coercive measure to secure payment. The High Court held that the Family Court order is not legally sustainable under Section 125(3) and directed Chandran’s release forthwith on a personal bond of Rs. 5,000, with liberty to pass fresh orders in accordance with law.

Provisions of Law Cited

Section 128 Cr.P.C.Section 125(3) Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner submits that the Family Court order directing imprisonment for non-payment of maintenance arrears is illegal and unsustainable in light of Section 125(3) Cr.P.C., which limits the execution of arrears to 12 months. Relying on Sundaran v. Sumathy (2006(3) KLT 725), it is urged that the order be set aside and release ordered once 12 months of imprisonment is completed, with the possibility of fresh lawful execution proceedings thereafter.

Contentions of Respondents

The respondent contends that although maintenance is due in favour of the wife, very little has been paid (only Rs. 5,000). The imprisonment is a justified coercive measure to secure compliance with the maintenance order, and the Family Court’s decision should be sustained and execution continued in accordance with law.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sundaran v. Sumathy	2006(3) KLT 725	Positive	The Court relied on this decision to support the proposition that Section 125(3) Cr.P.C. limits execution of arrears to 12 months and thus the 3 July 2009 order was not sustainable.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN SATURDAY, THE 30TH JANUARY, 2010 / 10TH MAGHA 1931 **RPFC.No. 7 of 2010** (CMP NO.310/06, 209/08 AND OP.24/2009 of THE FAMILY COURT, KASARAGOD) .................... PETITIONER: ------------------ CHANDRAN, S/O.KALLALAN(LATE), CONVICT NO.7455, CENTRAL JAIL, KANNUR. BY ADV. ADV.LUIZ GODWIN D'COUTH(STATE BRIEF) RESPONDENT: --------------------- K.VASANTHI, AGED 28 YEARS, D/O.LATE CHANIYAN, MALAPPACHERY,KANHIRAPOIL, MADIKAL VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SMT.T.SUDHAMANI THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 30/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **--------------------------------------------R.P(F.C).No. 7 of 2010 --------------------------------------------Dated this the 30[th] day of January, 2010** ## **O R D E R** This revision petition is filed from the Central Prison, Kannur wherein the revision petitioner is undergoing imprisonment pursuant to an order passed by the Family Court, vide its order dated 3.7.2009 in CMP No.310 of 2006. The revision petitioner is the respondent in M.C.No.71 of 2005 of the Family Court, Kasaragod and while disposing of the said petition for maintenance, by order dated 14.2.2006, the Family Court directed the revision petitioner to pay Rs.2000/per month to the claimant, who is the wife of the revision petitioner as maintenance. 2. Since there was failure on the part of the revision petitioner to make payment, the claimant approached the Family Court under Section 128 of the Cr.P.C. for execution of the order. Thus, initially, she filed CMP No.310 of 2006 for execution of the order. ## **R.P(FC) NO.7 of 2010** ## **:-2-:** That petition was closed on 3.7.2009 by sentencing him to undergo imprisonment for 18½ months and there was also a direction to produce him on the expiry of the said sentence so ordered. At the time of passing the above order, another CMP was pending i.e.,CMP No.209 of 2008, which is seen closed for the time being. Now, the petitioner challenges his imprisonment pursuant to the order dated 3.7.2009 in CMP No.310 of 2006. As the revision petitioner is undergoing imprisonment, the Registry has appointed Sri.Luiz Godwin D'couth as State Brief. Heard Sri.Luiz Godwin D'couth and learned Public Prosecutor appearing for the respondent. 3. Learned counsel for the petitioner, on the strength of the decision of this Court reported in **Sundaran** v. **Sumathy** (2006(3) KLT 725) and in the light of the provisions contained in Section 125(3) of the Cr.P.C., submitted that the order of the Family Court is illegal and irregular and liable to be set aside. The learned counsel for ## **R.P(FC) NO.7 of 2010** ## **:-3-:** the respondent submitted that though there is an order in favour of the respondent for maintenance, so far no amount, except Rs.5000/-, was paid by the revision petitioner. 4. I have carefully perused the materials available on record and heard the counsel for the parties. 5. On a perusal of the order dated 3.7.2009 in CMP No.310 of 2006, it is crystal clear that the revision petitioner is sentenced to 18½ months imprisonment for non-payment of arrears of 18½ months. Section 125(3) is very clear that no order can be passed for the execution of the arrears, beyond a total period of 12 months. Therefore, the order of the Family Court in CMP No.310 of 2006 is not legally sustainable. In the light of the above finding, the revision petitioner is entitled to get release on the expiry of 12 months imprisonment. The present order passed by the Family Court is against the provision and therefore, the revision petitioner is entitled to get released forthwith. I make it clear that it is open to the court below to pass fresh ## **R.P(FC) NO.7 of 2010** ## **:-4-:** orders upon the execution petition in accordance with law, especially in the light of the decision referred above. In the result, this revision petition is allowed directing the Superintendent of Jail, Central Prison, Kannur to release the petitioner forthwith on his executing a personal bond for a sum of Rs.5,000/- (Rupees Five Thousand only) to the satisfaction of the releasing Officer. The Registry is directed to send a copy of this order forthwith to the Superintendent of Central Prison, Kannur. The R.P(FC) is allowed. **sd/-** **V.K.Mohanan, Judge** MBS/ **-** true copy- P.S.TO JUDGE. ## **R.P(FC) NO.7 of 2010** **:-5-:** **V.K.MOHANAN, J.** -------------------------------------------- Crl.R.P.NO. OF 200 ## **R.P(FC) NO.7 of 2010** **:-6-:** ------------------------------------------- **O R D E R** DATED: -10-2009 ## **R.P(FC) NO.7 of 2010** **:-7-:**