IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 RPFC.No. 465 of 2007() ---------------------- AGAINST THE ORDER IN MC 145 2000 IN MC.189/2004 of FAMILY COURT, KOZHIKODE .................... : PETITIONER: ---------------------------- ABDULLAKUTTY, C.NO.4830, CENTRAL PRISON, KANNUR. BY ADV. SRI.BANI.P.(STATE BRIEF) RESPONDENTS: ------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ R.P.F.(C) No.465 of 2007 ------------------------------------- Dated this the 26th day of February, 2008 O R D E R This revision petition is filed by the petitioner, who is undergoing imprisonment under Section 125(3) Cr.P.C, consequent to his failure/refusal to pay the amount of maintenance which he has been directed to pay under Section 125/127 Cr.P.C. 2. This petition has been filed through prison authorities and after admitting the same, service of a State Brief was made available to the petitioner. The counsel has advanced detailed arguments. The respondent though served has not chosen to appear. 3. The claimants in the petition under Section 125 Cr.P.C are the wife and two minor children of the petitioner herein. As per order in M.C.145 of 2000, the petitioner was directed to pay an amount of Rs.500/-, Rs.250/- and Rs.250/- respectively to his wife and two minor children. Later as per order in M.C.189 of 2004, the said maintenance awarded was enhanced to Rs.1,500/- each to the wife and the two children. 4. The petitioner did not make the payments due under the order. Two petitions were filed as C.M.P.Nos.892 of 2003 and 837 of 2004 alleging non payment of amounts @ Rs.1,000/- per R.P.F.(C) No.465 of 2007 2 mensem for two long years. Later, C.M.P.752 of 2005 was filed complaining about the failure/refusal to pay an amount of Rs.27,000/- due and payable under the enhanced order of maintenance passed under Section 127 Cr.P.C. An amount of Rs.27,000/- being the maintenance payable for the period of 6 months (4,500 X 6) was also filed. In all the 3 petitions, no payment was made except an amount of Rs.10,000/- which is shown as paid on 16.06.06 in C.M.P.752 of 2005. The learned Judge of the Family Court, as per 3 separate orders passed in C.M.P.Nos.892 of 2003, 837 of 2004 and 752 of 2005, sentenced the petitioner to undergo simple imprisonment for a period of 12 months, 12 months and 3 months respectively. The petitioner claims to be aggrieved by the said orders. 5. I am ignoring the technicality that no separate revision petitions have been filed to assail the impugned orders in these 3 separate C.M.Ps. The learned counsel for the petitioner has advanced arguments on merits. The learned counsel for the petitioner advances three contentions. First of all it is contended that the enhancement of maintenance ordered as per M.C.189 of 2004 is unjustified. There is no challenge against the said order and the validity of the order passed in M.C.189 of 2004 need not, R.P.F.(C) No.465 of 2007 3 of course, be considered in this R.P.F.C. The said first contention must hence necessarily fall. 6. Secondly it is contended that the petitioner has paid an amount of Rs.35,000/- towards the maintenance due under these 3 years in two instalments. Surprisingly no material whatsoever is produced to show that such payment of Rs.35,000/- has been made. Records reveal only one payment and that is the payment of an amount of Rs.10,000/- on 16.06.06. In these circumstances, the second contention raised that any amount in excess of Rs.10,000/- has been paid cannot also be accepted on the basis of the materials presently available. 7. The petitioner is in prison and therefore I would direct the learned Judge of the Family Court to again verify the records and ascertain whether any amount other than the amount of Rs.10,000/- paid on 16.06.06 has been made towards the liability in these 3 petitions and if the learned Judge is satisfied that any such payment has been made (or the requisite satisfaction is induced by production of any document), credit shall be given to such payments if any made and appropriate further directions shall be issued to prison authorities. 8. The learned counsel for the petitioner finally contends that the sad plight of the petitioner may be taken into account R.P.F.(C) No.465 of 2007 4 and leniency may be shown on the question of sentence. In all the 3 petitions, the learned Judge of the Family Court has imposed the maximum sentence of imprisonment possible and permissible. Section 125(3) Cr.P.C makes it clear that for the whole or any part of each month's allowance for the maintenance remaining unpaid, the defaulter can be sentenced to imprisonment for a term which may extend to one month or until payment is sooner made. It is very clear that for every month's default, the defaulter can be sentenced to imprisonment for a period of one month. I am in complete agreement with the learned counsel for the petitioner that the mere fact that such a maximum sentence is prescribed by law does not necessarily mean that such maximum sentence must be imposed in every case. The totality of circumstances can be taken into consideration. Appropriate sentence can be imposed in each case. The learned counsel for the petitioner is justified in urging before this Court that this Court should not lose sight of the plight of the petitioner who has been remaining in custody from 07.05.07 under the impugned orders. He has not even been able to engage a counsel to argue this revision petition. He languishes in prison from 07.05.07. In these circumstances, I am satisfied that leniency can be shown. R.P.F.(C) No.465 of 2007 5 9. Considering all the relevant circumstances, I am satisfied, that the petitioner can be sentenced to imprisonment for a period of 15 days for the default in payment of maintenance in each month in these 3 petitions. 10. This revision petition is, in these circumstances, allowed in part. The impugned orders - all dated 07.05.07 in C.M.P.Nos.892 of 2003, 837 of 2004 and 752 of 2005 are upheld in all other respect, but the sentence imposed is reduced to 6 months, 6 months and 6 weeks respectively. Communicate the order to the learned Judge of the Family Court forthwith, who shall issue revised warrant after once again verifying whether any amount has been paid by the petitioner towards the liability which is sought to be enforced in these 3 petitions. 11. Communicate the order to the Family Court forthwith. (R.BASANT, JUDGE) rtr/- R.P.F.(C) No.465 of 2007 6