IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 RPFC.No. 185 of 2008() ---------------------- AGAINST THE ORDER DATED / / IN CMP.1044/02,1033/03,610/04,992/05,E IN MC.188/2001 of .................... PETITIONER --------------------------- M.P.VISWANATHAN, C.NO.5832, CENTRAL PRISON, KANNUR. (AGED 38 YEARS, S/O.SAMIKUTTY, RESIDING AT MARAMPARAMBATH, PALATH.P.O., PALATH AMSOM AND DESOM, KOZHIKODE TALUK, KAKKUR -PSL). BY ADV. NEEMA. T.V (STATE BRIEF) RESPONDENTS: RESPONDENTS ------------------------ 1. STATE OF KERALA 2. E.P.BINDU, AGED 27 YEARS, D/O.FALGUNAN, RESIDING AT EDAVANNAPOYIL, KANNANKARA.P.O., CHALANNUR AMSOM AND DESOM, KOZHIKODE DISTRICT. 3. NANDU (MINOR), AGED 4 YEARS, REP. BY GUARDIAN 2ND RESPONDENT E.P.BINDU, D/O.PALGUNAN, DO. DO. BY THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 25/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 185 of 2008 ------------------------------------------------- Dated this the 25th day of August, 2008 ORDER The petitioner has preferred this RP(FC) through prison authorities while he is undergoing sentence of imprisonment as per the impugned orders. Services of a State Brief counsel was made available to the petitioner. The respondent has not been served. Arguments have been advanced before me by the learned counsel for the petitioner. 2. Altogether, there are 5 impugned orders in this case. Ignoring the technicality that separate RPs(FC) must have been filed to assail each order, I am proceeding to consider the contentions raised. 3. The petitioner is the husband of the first claimant and father of the 2nd claimant – minor child. Marriage, paternity and separate residence are all not disputed. The claimants R.P.(FC) No. 185 of 2008 -: 2 :- staked a claim for maintenance and as per the order in Crl.M.C.No.188/01 maintenance was awarded to the claimants – wife and child at the rate of Rs.500/- and Rs.300/- per mensem respectively. The said order was passed on 15/11/01; but the order was to take effect from 6/6/01 – the date of the petition. After the said order was passed within a period of one year, the claimants came before court with a claim for arrears of maintenance for 13 months. That petition was pending as CMP No.1044/02. Later, the claimants filed three petitions claiming arrears of maintenance for a period of 11 months each. Subsequently, an application under Sec.127 Cr.P.C. was filed and the quantum of maintenance awarded was enhanced to Rs.1,000/- per mensem each to the two claimants. That order was to take effect from 23/11/06. Later, the last application was filed claiming arrears of maintenance for a period of 12 months – Rs.24,000/-. The amounts were not paid and the learned Judge of the Family Court, after observing all the stipulations of the Code, proceeded to impose sentence under Sec.125(3) Cr.P.C. The petitioner was sentenced to undergo simple imprisonment for a period of 12 months each in two of those petitions and 11 months each in the other three petitions. Altogether, there was thus default in payment of maintenance for a period of 57 R.P.(FC) No. 185 of 2008 -: 3 :- months. 4. The petitioner claims to be aggrieved by the impugned order. What is the grievance? The learned counsel for the petitioner submits that in the nature of the materials available in this case, the petitioner can only plead for leniency on the question of sentence. The learned counsel, of course, submits that the petitioner had filed an application for restitution of conjugal rights. Admittedly, no decree for restitution of conjugal rights has been secured by the petitioner herein. 5. The only prayer thus is one for leniency on the question of sentence. The sentences imposed in all these five cases are perfectly legal. In three cases, there was default in payment of maintenance for a period of 11 months and the sentence of imprisonment for 11 months is imposed also. In the first of the execution petition, there was a claim for maintenance for a period of 13 months; but the same is perfectly within the period of 12 months from the date on which the order became due as per the order in M.C.No.188/01 dated 15/11/01. 6. Similarly, after enhancement, the maintenance was ordered to be paid at the rate of Rs.1,000/- per mensem to each of the claimants (Rs.2,000/- in all). The last of the petitions i.e., CMP (Ex) No.32/08 is also filed claiming maintenance only for a R.P.(FC) No. 185 of 2008 -: 4 :- period of 12 months. In these circumstances, the amounts claimed were all perfectly within the period of limitation. 7. It is true that under Sec.125(3) Cr.P.C. the court can impose a sentence of imprisonment for a period of one month for default in payment of maintenance for each month. But that is only the maximum sentence that can be imposed. It is not as though such maximum sentence ought or must be imposed in every case. The court has an effective discretion in the matter and that is evident from the language of Sec.125(3) Cr.P.C. which stipulates that the period of one month is the maximum that can be imposed for failure to pay maintenance due for each month. That is only a cap on the maximum sentence that can be imposed. 8. I find merit in the contention of the learned counsel for the petitioner that there was no sufficient circumstance warranting imposition of the maximum sentence in the facts and circumstances of this case. 9. I take note of the circumstance that the petitioner is in custody from the date of the impugned orders i.e., 14/2/2008 in the first four cases and 20/5/08 in the last case. He has been undergoing imprisonment from 14/2/2008 and an idea about his financial position can be gathered from the fact that the R.P.(FC) No. 185 of 2008 -: 5 :- petitioner has not been able to engage a counsel of his own and the services of the State Brief counsel had to be made available to the petitioner. I am satisfied that leniency can be shown to the petitioner. The sentence imposed in each case can be reduced to its half. Imposition of a sentence of imprisonment for half a month for the default and payment of maintenance for each month, I am satisfied, shall in the facts of this case serve the ends of justice eminently. The challenge can succeed only to the above extent. 10. In the result: (a) This RP(FC) is allowed in part. (b) The sentence imposed on the petitioner as per the order dated 14/2/08 is reduced to simple imprisonment for a period of six months. (c) The sentence imposed on the petitioner as per order dated 14/2/08 in CMP No.1033/03 is reduced to 5 ½ months. (d) The sentence imposed on the petitioner as per the order dated 14/2/08 in CMP NO.610/04 is reduced to 5 ½ months. (e) The sentence imposed on the petitioner as per the order dated 14/2/08 in CMP No.992/05 is reduced to 5 ½ months. (f) The sentence imposed on the petitioner as per the order R.P.(FC) No. 185 of 2008 -: 6 :- dated 20/5/08 in CMP (Ex) No.32/08 is reduced to simple imprisonment for a period of six months. 11. Needless to say, the sentences imposed shall run consecutively and not concurrently. 12. Communicate a copy of this order to the court for issue for a fresh revised warrant of commitment. Communicate another copy of this order to the jail authorities and through them to the petitioner herein. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge R.P.(FC) No. 185 of 2008 -: 7 :-