IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 RPFC.No. 187 of 2008() ---------------------- AGAINST THE ORDER DATED 15/04/2008 IN CMP. 3023 /2006 IN CMP.333/2006 of Family Court, Palakkad .................... : PETITIONER/RESPONDENT --------------------------- KRISHNAKUMAR, C.NO.6755,S/O.THANKAPPAN, KUPPADATH CHITTAM VEEDU, KARIMBA.P.O., PALAKKAD - NOW RESIDING AT C/O.CHAMI, POOLAPARAMBIL, THEKKEPARAMBU VEEDU, PUTHUPPARIYARAM, PALAKKAD. BY ADV. SRI.LEAN JOSE.P(STATE BRIEF) RESPONDENT/PETITIONER : ------------- SUDEESHA, D/O.KUTTAPPAN, VADAKKETHARA, NAREETHA ROAD, PALAKKAD. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 13/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- R.P.F.C.No.187 of 2008 ---------------------------------------- Dated this the 13th day of August 2008 ORDER The petitioner has preferred this R.P.F.C through prison authorities assailing the sentence imposed on him by a common order passed in two execution applications under Section 128 Cr.P.C. 2. The petitioner initially suffered an ex parte order directing payment of maintenance at the rate of Rs.600/- per mensum. That was an ex parte order. Later, that ex parte order was set aside. The challenge raised before the Sessions Court in Crl.R.P.No.139/03 was dismissed. Accordingly, it would appear that the case came up for hearing again on 01/04/2005. Long later, as per order dated 12/7/2005, the claim under Section 125 Cr.P.C was allowed and the petitioner was directed to pay maintenance at the rate of Rs.750/- per mensum from the date of the application to the claimant, his wife. 3. After the order dated 12/7/2005 was passed, the petition filed C.M.P.No.333/06 on 29/08/2005 claiming maintenance for a period of 43 months, that is from 24/1/2002 R.P.F.C.No.187/2008 2 (the date of the M.C) to 24/8/2005. Later she filed Crl.M.P.No.3023/2006 on 06/11/2006 claiming maintenance for a period of 14 months from 25/8/2005 to 25/10/2006. After following the procedure prescribed by law, the impugned order was passed ultimately sentencing the petitioner to undergo S.I for a period of three years or till the payment of the amount of Rs.42,750/-is made. 4. The petitioner is undergoing imprisonment as per the said order dated 15/4/2008. 5. R.P.F.C was admitted. The petitioner was assigned the services of a State Brief counsel. Arguments have been heard in detail. The records have been called for and perused. 6. The learned counsel for the petitioner assails the impugned order on two grounds. First of all, it is contended that Crl.M.P.No.3023/2006 is barred by limitation. Inasmuch as the said petition was filed only on 06/11/2006, only the amount due from 07/11/2005 to 06/11/2006 alone could have been claimed. The claim beyond the period of twelve months is not justified. The claimant had claimed amounts due for the period from 25/8/2005 to 25/10/2006. The claim for the period from 25/8/2005 to R.P.F.C.No.187/2008 3 07/11/2005 is barred by limitation, contends the learned counsel for the petitioner. I find merit in that contention raised by the learned counsel for the petitioner. Amounts for the period exceeding 12 months could not have been claimed and the petitioner could not be sentenced to imprisonment for arrears exceeding a period of 12 months, if claim is not made within that period. 7. The order in the M.C was passed only on 12/7/2005. That order directed payment of maintenance from the date of the petition, that is 24/1/2002. Therefore the petition filed on 29/8/2005 - within a period of one year from 12/7/12005, the date on which the amount became due is perfectly within time. So far as the petition Crl.M.P.No.333/06 is concerned, there is no question of limitation at all, the execution petition having been filed within a period of 12 months from the date of the order under which the amount became payable. 8. So far as the later petition Crl.M.P.No.3023/2006 is concerned, I agree with the learned counsel for the petitioner that only the amount due from 07/11/2005 to 06/11/2006 could have been claimed. The said petition in so far as it relates to the period R.P.F.C.No.187/2008 4 from 25/8/2005 to 06/11/2005 is barred by limitation. 9. Thus under Crl.M.P.No.333/06 there was arrears for a period of 43 months. Under Crl.M.P.No.3023/2006, there was arrears legally recoverable only for a period of 12 months. Altogether there was thus arrears for a period of 55 months. 10. The learned counsel for the petitioner then submits that imposition of a sentence of imprisonment for 36 months when the amount payable was for a period of 55 months is excessive. The learned counsel for the petitioner prays that leniency may be shown. 11. Under Section 125(3) Cr.P.C, for default in payment for every month, imprisonment for a period of one month can be imposed. Thus, the maximum sentence imposable in these two petitions is 55 months. The learned Judge of the Family Court has imposed only imprisonment for a period of 36 months. The learned counsel for the petitioner prays that in the peculiar facts and circumstances of this case further leniency may be shown. Evidently, the petitioner is not able to raise the amount. That is why he languishes in prison from 11/4/2008, from which date he continues in custody. R.P.F.C.No.187/2008 5 12. I am unable to agree that imprisonment for 36 months prescribed by the learned Magistrate is illegal. It is perfectly within the maximum that can be imposed. But I do take note of the plight of the petitioner who has been remaining in custody from 11/4/2008 unable to pay the arrears of maintenance. It is reasonable to assume that genuine financial difficulty is deterring the petitioner from making payment of the amount. Otherwise it is reasonable to assume that he would not have continued in prison from 11/4/2008. I do also take note of the fact that he is not even able to engage a counsel and it is only the State Brief counsel who has been called upon to render legal assistance to him. 55 months maintenance at the rate of Rs.750/- per mensum (55 x Rs.750/- = Rs.41,250/-) is legally recoverable and the maximum sentence that can be imposed is imprisonment for a period of 55 months. Misplaced sympathy has no place as it is seen that the petitioner has not paid any amount so far for the maintenance of his wife. An order under Section 125 Cr.P.C has to be honoured and it is impermissible to show misplaced leniency. A court imposing a sentence must take note of the burning necessity to ensure that the order passed under Section 125 Cr.P.C is executed. But, all the R.P.F.C.No.187/2008 6 same, I take the view that in the peculiar facts and circumstances of this case leniency can be shown to the petitioner. Imprisonment for a period of half a month for default in payment of maintenance for every month, I am satisfied, shall serve the interests of justice eminently in the facts and circumstances of this case. 13. The upshot of the above discussions is that the petitioner is entitled for reduction of the period of sentence from three years ( 36 months) to 27½ months, that is half a month's imprisonment for default in payment of maintenance for each month, that is 55 x ½ (27½). 14. In the result, a) This R.P.F.C is allowed in part. b) The sentence of imprisonment is reduced from 36 months to 27 ½ months. 15. Communicate this order to the learned Judge of the Family Court who shall forthwith issue revised warrant of commitment. Communicate the order to the prison authorities and to the petitioner herein through the prison authorities. (R.BASANT, JUDGE) jsr