IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 RPFC.No. 236 of 2008() ---------------------- CMP.1872/2004 of Family Court, KOZHIKODE .................... : PETITIONER --------------------------- K.P.ABOOBACKER, C.NO.5757, CENTRAL PRISON, KANNUR. S/O. YUSUF, AGED 50 YEARS, KIZHAKKEPUTHIYOTTIL HOUSE,KANNOOKKARA.P.O., VATAKARA (VIA) EDACHERI - PSL). BY ADV. SRI.K.P. SUJESH KUMAR(STATE BRIEF) RESPONDENTS: RESPONDENT ----------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ASMA, D/O.ASSAN, AGED 38 YEARS, PUTHANPURAYIL HOUSE, VALIYAVALAPPU, AMBILAMPALLI (NEAR), VATAKARA-3, VATAKARA - PSL THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- R.P.F.C.No.236 of 2008 ---------------------------------------- Dated this the 18th day of August 2008 O R D E R This R.P.F.C has been filed by the petitioner who is undergoing imprisonment imposed on him under Section 125(3) Cr.P.C for non-compliance with the direction to pay maintenance at the rate of Rs.2,000/- per mensum to the claimant, his wife. 2. The petitioner had suffered an order under Section 125 Cr.P.C obliging him to pay maintenance at the rate of Rs.2,000/- per mensum from 08/10/2003. That order was passed on 30/6/2004. He did not pay the amounts due and the claimant, his wife, filed Crl.M.P.No.1872/2004 on 24/12/2004 claiming an amount of Rs.28,000/- being the amount due for the period from 08/10/2003 to 07/12/2004 (14 months at the rate of Rs.2,000/- per mensum = Rs.28,000/-). 3. She later filed Crl.M.P.No.1432/2007 in September 2007 claiming the amounts due as maintenance for the period from 08/09/2006 to 07/09/2007 (12 months at the rate of Rs.2,000/- per mensum = Rs.24,000/-). 4. The learned Judge of the Family Court after following the procedure prescribed by law proceeded to pass the impugned order imposing a sentence of 12 months each in these R.P.F.C.No.236/08 2 two petitions. The petitioner continues in custody from 25/1/2008, that is the date of the impugned orders. 5. The petitioner has preferred this R.P.F.C through prison authorities. He was unable to engage a counsel of his own. State Brief Counsel was appointed to render legal aid to the petitioner. 6. Arguments have been heard. Respondent has not been served and has not appeared before this court. I am satisfied that it is not necessary to wait for the appearance of the respondent to consider the challenge raised against the impugned orders by the petitioner. 7. Under law, one months imprisonment can be imposed for the default in payment of maintenance for every month. Petitions are within the time prescribed under the proviso to Section 125(3) Cr.P.C, both petitions having been filed within a period of one year from the date on which the amount became due. The learned Judge of the Family Court, for the total default of 26 months has chosen to impose a sentence of imprisonment for a period of 24 months in all. 8. The learned counsel for the petitioner submits that the order passed in the M.C was an ex parte order. The amount R.P.F.C.No.236/08 3 ordered to be paid is beyond the means of the petitioner and that his failure/omission to pay the amount was on account of reasons beyond his control. No other contentions are raised. 9. I am satisfied that there has been default in payment of maintenance amounts due for the periods of 14 months and 12 months respectively in these petitions. The procedure prescribed under the code has been followed. The court below was certainly justified in imposing a sentence of imprisonment for the default in payment of amounts for the two periods referred above. I find no worthwhile contentions raised or available for the petitioner to assail the steps taken for recovery of the amounts by directing imprisonment. However, I take note of the fact that the petitioner has been remaining in custody from 25/1/2008. An idea about his financial ability can be gathered from the fact that though he continues in custody from 25/1/2008, he is unable to engage even a counsel of his own. I am, in these circumstances, satisfied that a lenient view can be taken and the length of the sentence imposed can be reduced. 10. In coming to this conclusion, I have alertly taken note of all the relevant circumstances. I take note of the fact that the petitioner remains in custody from 25/1/2008. I further take R.P.F.C.No.236/08 4 note of the fact that he has not been able to make any payment even though he has remained in custody from the said date. I take note of the further circumstance that the petitioner has not been able to engage even a counsel of his own. I take note of the imperative need to ensure that directions of payment of maintenance under Section 125 Cr.P.C are zealously observed and complied with by persons who have suffered such orders. I take note of the plight of the claimant, who, inspite of a long battle, is unable to recover the amounts. I take note of the maximum limit of imprisonment prescribed under law. I take note of the further circumstance that the sentence prescribed under Section 125(3) Cr.P.C is only the maximum and courts have discretion to impose appropriate sentence without offending the maximum prescribed under the Code. Taking all the relevant circumstances into account, I am satisfied that the sentence of imprisonment imposed can be suitably modified and reduced. A sentence of imprisonment for half a month for non- compliance with a direction to pay maintenance for each month, I am satisfied, shall serve the ends of justice eminently. 11. In the result, a) This R.P.F.C is allowed. R.P.F.C.No.236/08 5 b) The order dated 25/1/2008 in Crl.M.P.No.1872/2004 is modified and in supersession of the sentence imposed by the learned Judge of the Family Court, the petitioner is sentenced to undergo S.I for a period of seven months (½ a months imprisonment for default in payment of maintenance for each month for the total period of 14 months) . In all other respects, the said order is upheld. c) In supersession of the order dated 25/1/2008 in Crl.M.P.No.1432/2007, the petitioner is directed to undergo imprisonment for a period of six months (½ a months imprisonment for default in payment of maintenance for each month for the total period of 12 months). In all other respects, the said order is upheld. 12. Communicate this order to the Family Court forthwith. The Family Court shall issue revised warrant of commitment. Communicate the order forthwith to the prison authorities and to the petitioner through the prison authorities. (R.BASANT, JUDGE) jsr R.P.F.C.No.236/08 6 R.P.F.C.No.236/08 7 R.BASANT, J R.P.F.C.No. ORDER 11/02/2008