Moideenkutty Kunhankutty Haji vs State Of Kerala : 2008 Cri.L.J. 3402 : (2008) 2 ILR(Ker) 760 : 2008 (3) CivCC 647 : 2008 (2) HLR 552 : 2008 (2) KerLJ 741 : 2008 (3) KLT 8 : 2008 (4) RCR (Civil) 110 : 2008 (4) RCR (Crl) 90 : (2009) AIIMR(Cri)(JS) 74 : (2008) 4 CrCC 104 : (2008) 2 KHC 845 : 2008 LRC Online 743(Ker)
Section 125(3)-Default in payment of maintenance-Imposition of sentence of rigorous imprisonment on defaulter-Impermissible-Only a sentence of simple imprisonment can be imposed under s. 125(3) of crPC.
Held : The rationale underlying Section 125(3) Cr.P.C makes it clear that the law wants the direction to pay maintenance to be enforced and executed strictly. Under the threat of detention in a criminal prison compliance is insisted. I am of the opinion that going by the purpose which such detention/imprisonment has to serve also, it is not necessary to impose the harsh punishment of rigorous imprisonment under Section 125(3) Cr.P.C. The threat of being sent to prison is according to me by itself sufficient deterrent and it is not necessary to cap the same with the further direction that such prisoner should undergo rigorous imprisonment with obligation to render hard labour.
It follows from the above discussions that the expression “imprisonment” in Section 125(3) Cr.P.C must receive a more liberal and humane interpretation consistent with the constitutional ideals as to avoid the consequence of subjecting such a defaulter to the ordeal of rendering involuntary hard labour for the mere indiscretion of failure/refusal to make payment of the maintenance amount.
I do in these circumstances come to the conclusion that it is impermissible to impose a sentence of rigorous imprisonment on a defaulter under Section 125(3) Cr.P.C. I respectfully disagree with the conclusions/observations of the Full Bench of the Allahabad High Court and the Division Bench of the Calcutta High Court.
What remains to be considered is only whether the sentence of imprisonment for 12 months is justified in the facts and circumstances of this case. I do take note of the fact that the petitioner continues in custody even now unable to make payment of any part of the defaulted amount. He is unable even to engage a counsel of his own. It will not be unreasonable or irrational for the court now to assume that genuine financial difficulty is prompting the petitioner not to pay the amount. I am in these circumstances, satisfied that the length of the period of imprisonment for default can be reduced and the petitioner who remains in custody from 31/7/2007 can be directed to be released from custody holding that the period of imprisonment already undergone is sufficient for the default. I may hasten to note that though the maximum sentence that can be imposed is imprisonment for one month, for the default of the whole or the part of the maintenance amount for every month, it is not imperative or invariable that such maximum sentence must be imposed in every case. At any rate, in the facts of this case where the petitioner is undergoing imprisonment from 31/7/2007 and is unable to get himself liberated from prison by making payment of atleast the balance amount payable, I am satisfied that such leniency can be shown. The direction that the amount earned by labour rendered shall be payable to the claimants shall be carried out.
In the result, this R.P.F.C is allowed in part. It is held that only a sentence of simple imprisonment can be imposed under Section 125(3) Cr.P.C. The sentence imposed is reduced to the period of imprisonment already undergone by the petitioner. He shall be released from custody forthwith if his further detention is not required in connection with any other case.