IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 RPFC.No. 100 of 2008() ---------------------- AGAINST THE ORDER DATED 02/08/2007 IN CMPs.854/04, 168/06 & 843/07 IN MC.68/2003 of .................... PETITIONER: -------------- DINESAN,S/O. LAKSHMANA VYDIAR, AGED 41 YEARS, KAMBURAM VEEDU, NEAR KAMBURAM BUS STOP, KALATHUKUNNU AMSOM DESOM, KOZHIKODE TOWN, NADAKKAVU PSL. BY ADV. SRI.MANJU ANTONY(S.B) RESPONDENTS: ----------------- 1. SOBANA, D/O. THEYYAN, AGED 36 YEARS, PERNAM KUZHIYIL, AGASTHYAMUZHI, THAZHAKKODE AMSOM DESOM, KOZHIKODE. 2. DISHOB, (MINOR), -DO- -DO- 3. DISHODH (MINOR), BY PUBLIC PROSECUTOR THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- R.P.(FC) No. 100 OF 2008 ----------------------------------------------- Dated this the 20th day of June, 2008 O R D E R This revision petition is filed by a prisoner in custody who has been sentenced under Section 125(3) Cr.P.C in three separate petitions to undergo imprisonment for a total period of 24 months. 2. The prisoner has preferred this revision petition through prison authorities. Service of a legal aid/State Brief counsel has been made available to him. The delay in filing the petition has been condoned. Though orders in three separate applications are challenged, separate revisions have not been filed. The challenge raised against the orders passed in three different petitions has been taken up for consideration in this one RPFC, ignoring the technical flaw. The learned counsel for the petitioner, Sri.Manju Antony, has advanced his arguments. 3. The petitioner’s wife and two children had filed an application under Section 125(3) Cr.P.C and by an order in MC No.68/03, the petitioner was directed to pay maintenance to them R.P(FC) No. 100 OF 2008 2 at the rate of Rs.500, Rs.250/- and Rs.250/- per mensem respectively on 23.02.04. The petitioner did not comply with the said orders. This obliged the claimants to seek enforcement of the order of maintenance. CMP Nos.854/04, 168/06 and 843/07 were filed claiming the defaulted amounts. All these petitions were filed claiming defaulted amounts for a period of 15 months, 12 months, and 12 months respectively. In CMP No.854/04 an amount of Rs.8,000/- appears to have been paid and the balance due was only Rs.4,000/- on the date of the impugned order. In CMP No.168/06, an amount of Rs.4,000/- appears to have been paid and the balance due was only Rs.8,000/-. In CMP No.843/07 no amount was paid and the balance due was maintenance for the period of 12 months. 4. After complying with the legal procedure as payments were not forthcoming, non bailable warrants were issued against the petitioner and he was brought in custody to court. The learned Judge of the Family court sentenced the petitioner to undergo imprisonment for a period of 4 months, 8 months and 12 months respectively in CMP Nos.854/04, 168/06 and 843/07. R.P(FC) No. 100 OF 2008 3 5. The petitioner assails these orders before me. The only ground of challenge is that the petitioner must have been given more time to make the payment and that, at any rate, the sentence of imprisonment imposed is excessive. I find no merit in the former grievance as sufficient time appears to have been granted before the impugned orders were passed. But, I find merit in the contention of the learned counsel that it was not necessary to impose the maximum permissible sentence on the petitioner in all the three applications. Under Section 125(3) Cr.P.C, it is true that the imprisonment for a period of one month can be imposed for default in payment of maintenance for every month. But this is not an inflexible or rigid rule that each sentence must be imposed in every case. Considering the totality of circumstances, leniency must have been shown to the petitioner, it is contended. 5. I take note of the fact that even though the petitioner was sent to prison as per order dt.02.08.07, he was not been able to make any further payment and he has been continuing in custody for the past about one year. If he had any resources, it is reasonable to assume that he would not have chosen to continue R.P(FC) No. 100 OF 2008 4 in prison all these days. In this view of the matter, I find that leniency can be shown. It is certainly not the law that imprisonment must be imposed for a period one month for default in payment of maintenance for one month. The quality of mercy and awareness of realities must be there. Section 125(3) Cr.PC only stipulates the maximum period of imprisonment and I am satisfied in the facts and circumstances of this case that leniency can be shown to the petitioner. 6. In the result, this RP(FC) is allowed. The impugned orders are modified. The petitioner is sentenced to undergo imprisonment for the periods shown below in the following petitions in modification of the orders dated 02.08.07 passed by the learned Judge of the Family Court: 1. CMP No.854/04 - SI for two months 2. CMP No.168/06 - SI for four months 3. CMP No.843/07 - SI for six months Total - Twelve months 7. The direction issued by the learned Judge of the Family Court that the sentences shall run consecutively is upheld. R.P(FC) No. 100 OF 2008 5 8. Send back the records to the learned Judge of the Family Court forthwith. Revised warrants of commitment shall be issued by the learned Judge. Communicate copy of the order to the prisoner in custody also forthwith. R. BASANT, JUDGE ttb R.P(FC) No. 100 OF 2008 6 R.P(FC) No. 100 OF 2008 7