IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 RPFC.No. 151 of 2008() ---------------------- AGAINST THE ORDER DATED 23/11/2007 IN CMP.1485/2005 IN MC.332/2004 OF THE FAMILY COURT, KOZHIKODE. .................... PETITIONER: APPELLANT -------------------------- ABDUL SALIM, C.5560, CENTRAL PRISON, KANNUR. BY ADV. ADV.SUNIL MUHAMMAD(STATE BRIEF) RESPONDENTS: ------------- 1. HAIRUNNISA.C., 25 YEARS, D/O. MUHAMMED, THAZHETHIL HOUSE, VADAKKUMBAD, MUNNAR. 2. SALMAN, S/O. ABDUL SALIM, 8 YEARS, MINOR. 3. SAIJAL FARIA, S/O. ABDUL SALIM, 6 YEARS, MINOR. 4. MUHAMMED FINAS, 1 YEAR, S/O. ABDUL SALIM, MINOR MINORS 2ND 3RD AND 4TH RESPONDENTS ARE REP. BY THE 1ST RESPONDENT AS GUARDIAN. BY ADV. SRI.C.P.MOHAMMED NIAS THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 151 of 2008 ------------------------------------------------- Dated this the 17th day of July, 2008 ORDER The petitioner in this RP(FC) has been sentenced by the Family Court, Kozhikode, to undergo simple imprisonment for a period of 12 months in two different applications for refusal/ failure to pay an amount of Rs.3,200/- per mensem to his wife and children for two periods – 12 months each, in all under the two orders impugned in this revision petition. He faces the prospect of imprisonment for a total period of two years for default in payment of the maintenance amounts of Rs.38,400/- each year. 2. This revision petition has been preferred by the petitioner through prison authorities. I am ignoring the technicality that separate revisions have not been filed against two separate impugned orders. A counsel has been appointed R.P.(FC) No. 151 of 2008 -: 2 :- on State Brief to render assistance to the petitioner. The respondents have entered appearance through counsel. Arguments have been heard. 3. That the petitioner is liable to pay an amount of Rs.38,400/- in each of the petitions and that such amounts have fallen due during the period of one year is not disputed. The learned counsel for the petitioner is unable to point out any illegality in respect of the impugned orders. The learned counsel only submits that leniency may be shown and the period of sentence imposed on the petitioner may be reduced. This Court may be realistically take note of the fact that the petitioner is continuing in custody from 23/11/07 till this day and that he is not able even to engage a counsel of his own, though he has to undergo imprisonment for 24 months. The learned counsel for the petitioner submits that these circumstances are sufficient to indicate to the court that genuine financial difficulties is prompting the petitioner not to make the payments and thus secure his own release from prison. 4. That dimension of the submission is well received. I take note of the helpless plight of the petitioner. But I cannot R.P.(FC) No. 151 of 2008 -: 3 :- commit the indiscretion of not taking note of the plight of the claimant/wife aged 25 years and children aged 8 years, 6 years and 1 year respectively who are forced to look upto the petitioner in life. In spite of the orders passed by the Family Court under Sec.125 Cr.P.C., the petitioner has not cared to pay even one pie towards the amount during this period of two years. 5. No compelling circumstances have been shown to exist as to why the petitioner was unable to make the payments during the relevant period. Having considered all the relevant inputs, I am satisfied that the only and the best relief that this Court can grant to the petitioner is to reduce the sentence which he is obliged to suffer as a result of his own failure to make the payment of the amounts due under Sec.125 Cr.P.C. 6. I have already observed in Moideenkutty v. State of Kerala (2008 (3) KLT 8) that Sec.125(3) Cr.P.C. only prescribes the maximum period of sentence that can be imposed on a defaulter and that the said provision of the Statute does not prescribe the minimum. The discretion rests with the court to fix appropriate term of imprisonment. Imprisonment in the instant case is not for commission of any offence or as penalty; R.P.(FC) No. 151 of 2008 -: 4 :- but is only as a mode of enforcement of payment of the amounts due. The petitioner and those similarly situated cannot be tempted to commit the indiscretion of not complying with the orders passed under Sec.125(3) Cr.P.C. They cannot be permitted to leave their wives and children in need to their fate. Every court must show anxiety to ensure that the amounts payable under Sec.125(3) Cr.P.C. are paid by the persons on whom the liability is imposed and that they are not tempted to violate the directions imposed. 7. Taking all the relevant circumstances into account and balancing all the considerations, I am satisfied that the sentence as per the two impugned orders can be modified and reduced. In coming to this conclusion, I take note of the totality of circumstances, particularly the fact that the petitioner who is not able even to engage a counsel of his own has been suffering incarceration from 23/11/07. 8. In the result: (a) This RP(FC) is, in these circumstances, allowed in part. (b) The sentence of simple imprisonment imposed on the petitioner as per the orders dated 23/11/07 in CMP No.1485/05 R.P.(FC) No. 151 of 2008 -: 5 :- and 1087/07 is reduced to imprisonment for a period of 6 months each. Needless to say, the sentences imposed shall run consecutively. 9. Communicate a copy of this order to the learned Judge of the Family Court forthwith who shall issue revised warrant of committal immediately. 10. Communicate a copy of this order to the prison authorities and through them to the petitioner. (R. BASANT, JUDGE) Nan/ R.P.(FC) No. 151 of 2008 -: 6 :- R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 151 of 2008 ------------------------------------------------- Dated this the 17th day of July, 2008 ORDER