Madras High Court
S.Abuthakeer vs S.Faritha Fathima on 16 September, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
( Criminal Jurisdiction )
Dated: 16/09/2022
PRESENT
The Hon'ble Mr.Justice G.ILANGOVAN
Crl.RC(MD)No.581 of 2022
and
Crl.MP(MD)No.7176 of 2022
S.Abuthakeer : Petitioner/Respondent/
Respondent
Vs.
1.S.Faritha Fathima
2.Minor Roopina Banu : Respondents/Petitioners/
(Minor second respondent Petitioners
represented through her
mother and guardian,
the first respondent)
Prayer:- This Revision has been filed under
section 397 r/w 401 of the Criminal Procedure Code to
call for the records and to set aside the order, dated
26/05/2022 passed in the petition in Cr.M.P No.3908 of
2019 in MC No.56 of 2014 on the file of the Judicial
Magistrate Court, Aruppukottai.
For Petitioner : Mr.J.Barathan
For Respondents : Mr.C.M.Arumugam
https://www.mhc.tn.gov.in/judis
2
O R D E R
This revision has been filed seeking to set aside
the order, dated 26/05/2022 passed in the petition in
Cr.M.P No.3908 of 2019 in MC No.56 of 2014 by the
Judicial Magistrate Court, Aruppukottai.
2.The facts in brief:-
It is a matrimonial issue, over which the
respondents initiated MC No.56 of 2014 seeking
maintenance. That was ordered by the trial court, on
02/09/2019 directing the petitioner to pay a sum of Rs.
10,000/- each to the respondents 1 and 2 from the date of
petition. Against which, revision was preferred and that
was dismissed by the revisional court, on 11/03/2021
confirming the quantum. To execute the order, the
respondents filed Cr.MP No.3908 of 2019 stating that 54
months arrear is due and the total amount to be paid is
Rs.10,80,000/- and that was filed, on 03/04/2019. The
trial court passed the order, on 26/05/2022 directing the
petitioners to undergo 15 months simple imprisonment or
until the payment of arrears of maintenance amount. That
was ordered , on 26/05/2022. Against which, this criminal
revision has been preferred mainly not only on the ground
https://www.mhc.tn.gov.in/judis
of limitation, but also with regard to the period of
punishment.
3.Heard both sides.
4.An elaborate argument has been advanced by the
learned counsel appearing for the petitioner not only on
the factual issue, but also on legal issue.
5.After hearing the parties, I made a suggestion
to settle the issue. Even though the learned counsel
appearing for the respondents readily accepted the same,
but a rider has been made by him to the effect that let
the petitioner be directed to pay the balance arrears of
maintenance. According to him, more than Rs.16,00,000/-
is now due. As per the order of this court, a portion of
the amount Rs.3,00,000/- was also paid towards part of
the arrears amount.
6.But the learned counsel appearing for the
petitioner would submit that the entire family has been
spoiled by one person. But it appears that the petitioner
is not accepted, the suggestion of this court. There is
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some sort of grudge against the respondents. So that can
be sorted out, if the parties sit together in the
mediation process. Now whatever it may be, the matter can
be disposed of on merits.
7.With regard to the first contention that the
respondents can file execution petition only for one year
is also out of place and cannot be accepted for the
simple reason that even though, the Maintenance Case was
filed in 2014, final order was passed, on 02/02/2019
directing the petitioner to pay the maintenance from the
date of the petition. On the date of the disposal, 52
months arrears has to be paid. Cr.M.P No.3908 of 2019
has been filed within time. So the time cannot be
calculated from the date of the original petition. The
time limitation of 12 months will start running only from
the date of order and not from the date of the petition
I.e., the original petition was filed. The petitioner
cannot take advantage of the long delay in disposing the
Maintenance Case for the purpose of argument that the
respondents are entitled for arrears only for 12 months.
This amount became due only on the date of the order
namely 02/02/2019. So the first ground of limitation of
https://www.mhc.tn.gov.in/judis
12 months is not acceptable. Subsequent period of12
months can be taken and not for the original period.
8.The next ground is that even though single
petition has been filed, the Magistrate can impose the
imprisonment only for a period of one month or until the
payment, if sooner made. Much argument was advanced on
this point. He has also cited very many judgments.
9.No doubt that at one point of time, there was an
opinion that even if a single petition is filed under
section 125(3) Cr.P.C for so many months, the Magistrate
can impose penalty at the maximum period of one month
only. But that view has been diluted subsequently.
10.There is no doubt on that, as mentioned
earlier, the execution petition can be filed within a
year from the date of the order of the original petition.
Here, as mentioned earlier, there is no bar of
limitation. But the argument that only one month maximum
period can be imposed is completely out of place and not
acceptable in view of the change of views. More
particularly, we can refer the decision of the Division
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Bench of this court in the case of M.Rajkumar Vs.
Commissioner, Madurai City, Madurai & others (HCP (MD)SR
No.31625 of 2018, dated 09/01/2019). After elaborate
discussion, that judgment was rendered in a Habeas Corpus
Petition. After considering all the relevant judgments
including the judgment that has been cited by the learned
counsel appearing for the petitioner in the case of
Shahada Khatoon and anothers Vs. Amjad Ali and others
[(1999)5 SCC 672). so we need not trouble much this order
upon the above said controversy, since it has been now
well settled by the Division Bench of this court. The
view that has been expressed by this court prior to the
Division Bench decision in the case of R.Kumaravadivel
Vs. Lakshmi and others (CDJ 2007 MHC 1600), now it cannot
be taken advantage by this petitioner.
11.The contention on the part of the petitioner is
rejected outright and the entertaining of the petition by
the executing court cannot be found fault. But at the
same time, one important thing must be born in mind as
stated earlier. The maintenance petition was kept pending
for more than 4 years. So because of the pendency of the
petition for several years, the arrears has accumulated.
https://www.mhc.tn.gov.in/judis
So also the period imprisonment is increased. So for
that purpose, the petitioner should not be penalised by
ordering 15 months imprisonment at a stretch. So, I am of
the considered view that the imprisonment of 15 months
can be reduced to six months. Since a portion of the
amount has been paid by the petitioner, an opportunity
may be given to the petitioner to pay the balance amount
to avoid the imprisonment.
12.In the light of the above facts, this criminal
revision is partly allowed and 15 months simple
imprisonment is reduced to 6 months of simple
imprisonment until payment is made. The imprisonment
shall remain suspended for two months. In the meantime,
the petitioner must pay the entire arrears amount and
must file a compliance report before the concerned
executing court. If any violation of the above said
condition, the executing court may take steps to secure
the petitioner for subjecting him to undergo the
remaining period of imprisonment.
13.With the above said direction, this criminal
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revision is partly allowed. Consequently connected
Miscellaneous Petition is closed.
16/09/2022
Index:Yes/No
Internet:Yes/No
er
To,
The Judicial Magistrate,
Aruppukottai.
G.ILANGOVAN,J
https://www.mhc.tn.gov.in/judis
er
Crl.RC(MD)No.581 of 2022
16/09/2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
