IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 RPFC.No. 248 of 2008() ---------------------- AGAINST THE ORDER DATED 13/02/2008 IN CMP NOS. 1534/2002, 1984/2003 & 355/05 IN MC.136/2007 OF THE FAMILY COURT, KOZHIKODE .................... PETITIONER --------------------------- C.K.SREEDHARAN,C.NO.5828, CENTRAL PRISON, KANNUR. BY ADV. SRI.GEORGE SEBASTIAN(STATE BRIEF) RESPONDENTS: ------------- 1. STATE OF KERALA 2. ASARIKANDI SYAMALA, D/O. KUMARAN PULAKKUNNUMMAL (AO) PUNNASSERI AMSOM DESOM KOZHIKODE TALUK. 3. ANUSRI (MINOR) REP. BY GUARDIAN, SYAMALA. BY ADV. SRI.P.V.KUNHIKRISHNAN FOR R1-2 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 248 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of August, 2008 O R D E R The petitioner has preferred this revision petition to assail three orders passed against him, all dated 13.2.2008 under Section 128 r/w. 125(3) Cr.P.C., under which he has been sentenced to undergo imprisonment for a period of 12 months for default in payment of maintenance for three distinct periods, each extending to a period of 12 months. 2. The claimants are the wife and minor child of the petitioner. As per a consent order passed in M.C. 136 of 1997 on 24.12.1997 the petitioner was directed to pay an amount of Rs.350/- and Rs. 200/- p.m. respectively to his wife and child. That order continues to remain in force. There has been no enhancement of the maintenance so far. It is submitted by the counsel for the respondents that the matrimonial tie has already been dissolved. R.P.F.C.No. 248 of 2008 2 3. I am not going into the technicality that one revision petition has been filed to assail three different and distinct orders. Considering the fact that the petitioner is in custody and is undergoing the sentence and that he is not able even to engage a counsel of his own to prosecute this petition, I am ignoring the said technicality. 4. An amount of Rs.6,600/- (550 x 12) was in arrears and remain to be paid in all these petitions. The learned Judge of the Family Court, after observing the stipulations of the Code, was constrained to pass the impugned orders imposing a sentence of S.I. for a period of 12 months each in the three petitions. 5. As stated earlier, this petition was preferred through the Prison authorities. The petitioner was not able to engage a counsel. The services of a State Brief counsel was assigned to the petitioner. The learned counsel for the petitioner has advanced his arguments. The respondent has also entered appearance through counsel. 6. The learned counsel for the respondent submits that there is deliberate violation of the order passed by the Family Court directing payment of maintenance under Section 125 Cr.P.C. The petitioner, the R.P.F.C.No. 248 of 2008 3 counsel submits, has married again and that in all from 1997 the petitioner has only paid an amount of Rs.6,600/- to the claimants by now. 7. The learned counsel for the petitioner submits that leniency may be shown to the petitioner. He faces the prospect of undergoing imprisonment for a period of three long years as sentence of imprisonment for one year consecutively has been ordered in each of the case. The plight of the petitioner may be taken note of. The fact that he continues in custody from 13.2.2008 is proof positive of the fact that he is unable to raise any amount to discharge the liability, submits the counsel. He further submits that the court can gather an idea about the financial position of the petitioner from the simple fact that he is not able to prefer a revision petition on his own or to engage a counsel of his own to prosecute this petition. 8. I have taken note of all those circumstances, but I cannot afford to ignore the fact that the petitioner is irresponsible in not choosing to pay even a pai towards the amount of Rs.6,600/- payable in each of these petitions. An element of recalcitrance can be gathered from the totality of circumstances. R.P.F.C.No. 248 of 2008 4 9. Under law a sentence of imprisonment for one month can be imposed for default in payment of maintenance for each month. But that is only the maximum sentence permitted by law. It is not invariable that in every case of default in payment of the maintenance amount, the maximum sentence must be imposed by Courts. The totality of circumstances can be taken into account. The quality of mercy is the prime attribute of justice and that aspect cannot be ignored or overlooked. Whatever may have been the cause for non payment, it now appears to be evident that difficulty in raising the amount is prompting the petitioner to continue in prison. Otherwise it is reasonable to assume that he would not have opted to remain in custody from 13.02.08. 10. At the same time there can be no room for misplaced sympathy or leniency when the court is called upon to translate the compassion of the legislature into tangible results. There must be firm insistence on payment of the amounts due under orders passed under Section 125 Cr.P.C. A person who does not take necessary steps to make the payment must certainly know that he does it to his own peril. R.P.F.C.No. 248 of 2008 5 A firm stand has to be taken on the question of term of imprisonment to be imposed for default in payment. 11. Having considered all the relevant circumstances into account, I am satisfied that imposition of a sentence of imprisonment for half a month for default in payment of maintenance for each month shall eminently serve the ends of justice in the facts and circumstances of the case. This revision can succeed only to the above extent. 12. In the result: i) This Revision Petition is allowed in part. ii) The sentence imposed on the petitioner by the impugned orders dt.13.02.08 in C.M.P.No.1534 of 2002, C.M.P No.355 of 2005 and C.M.P No.1984 of 2003 is reduced from S.I for a period of 12 months each to S.I for a period of 6 months each. Needless to say, the sentences shall run consecutively. Direction to that effect issued by the learned Judge is upheld. 13. Communicate the order to the Family Court forthwith. The learned Judge of the Family Court shall take necessary steps to issue a R.P.F.C.No. 248 of 2008 6 revised warrant of commitment. Communicate the order to the prison authorities also forthwith and through them to the petitioner also. (R. BASANT) Judge tm