IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 RPFC.No. 99 of 2008() --------------------- AGAINST THE ORDER DATED 26/04/2007 IN CMPs.509/04, 547/05, 465/06 and 465/07 IN MC.272/2003 of .................... PETITIONER : -------------- K.V.MUSTHAFA, C.NO.4782, CENTRAL PRISON, KANNUR. BY ADV. SRI.K.P.SUJESH KUMAR(S.B) RESPONDENTS: ---------------- 1. RASEENA K., D/O. MOIDEEN KOYA, KUNNUMMAL HOUSE, KONGANNOOR AMSOM, ATHOLI, KOZHIKODE. 2. FASNA (MINOR), -DO- -DO- 3. FAHAD, (MINOR), -DO- 4. FAYIS, (MINOR), -DO- (MINORS REP. BY MOTHER/GUARDIAN 1ST RESPONDENT). THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- R.P.(FC) No. 99 OF 2008 ----------------------------------------------- Dated this the 20th day of June, 2008 O R D E R The petitioner who is undergoing imprisonment in prison has now come to this Court to assail four orders passed under Section 125(3) read with Section 128 Cr.P.C, all dated 26.04.08, under which the petitioner has been sentenced to undergo SI for a total period of 43 months. 2. The petitioner's wife and three children applied for maintenance by filing an application before the Family Court in 2003. That matter was settled and there was an agreement to pay a total amount of Rs.1,400/- per mensem (Rs.500/- for the wife and Rs.300/- each for the three children). Though such a consent order was passed, no payments were made. Applications for execution of the order of maintenance were filed, viz CMP Nos.509/04, 547/05, 465/06 and 465/07. Execution was claimed for the defaulted amounts payable during a period of 12 months each. Part payment of the amount was made in CMP 549/04 and 7 months maintenance amount alone remained in arrears in that R.P.(FC) No. 99 OF 2008 2 petition. In all the three petitions, no amount was paid. The records show that only an amount of Rs.10,800/- was claimed during this period. Obviously, the marital tie was dissolved by the order of the Court in OP No.576/03 dated 30.02.03. For the three children at the rate of Rs.900/- per mensem a total amount of Rs.10,800/- was claimed in all the four petitions. Five months maintenance was paid in the first case and there was therefore default of payment of maintenance for 43 months(7+12+12+12). As attempts made to recover the amount did bear no fruit, the learned Judge of the Family Court was ultimately constrained to sentence the petitioner to undergo SI for a period of 7 months, 12 months, 12 months and 12 months respectively in all these four petitions. Accordingly, the petitioner remains in custody from 26.04.07. 3. This petition has been preferred through prison authorities. The same was admitted. The service of a state brief counsel was made available to the petitioner. Ignoring the technical flaw that separate applications have not been filed against these four separate impugned orders, the matter was R.P.(FC) No. 99 OF 2008 3 taken up for hearing. 4. The learned counsel for the petitioner makes one submission. He submits that the petitioner has not been given sufficient opportunity before the court to pay the amount. It is further submitted that, at any rate, the sentence imposed is grossly excessive and disproportionate to the purpose for which sentence is imposed under Section 125(3) Cr.P.C. 5. I take note of the fact that the petitioner has remained in custody from 26.04.07 and has not so far been able to pay the amount and get himself released from prison. That circumstance is sufficient to convey to the court that genuine financial difficulty appears to be prompting the petitioner to continue in custody without making the payment of the amounts due. It is by now trite that the imposition of a default sentence under Section 125(3) Cr.P.C is not a measure of punishment but is only to enforce the order directing payment. If the court is convinced that a person is not able and cannot make the payment, the sentence to be imposed must certainly carry elements of mercy and reality. Sentencing such a person to imprisonment for unduly long periods R.P.(FC) No. 99 OF 2008 4 of time, may only be punitive and may not be of any help to anyone. Of course there is an element of deterrence also in such enforcement of payment of amounts, The trauma of such detention may help to avoid repetition of such indiscretion in future. A realistic approach is certainly required considering all the inputs. Under Section 125(3) Cr.P.C, for each monthly default in payment, a sentence of imprisonment of one month can be imposed. But it must be noted that it is not rigid that one month’s imprisonment must be imposed for default of payment of every month’s maintenance. The discretion of the courts to impose a lesser sentence is not taken away at all, considering the language of Section 125(3) which reads as follows: Section 125(3): “if any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term R.P.(FC) No. 99 OF 2008 5 which may extend to one month or until payment if sooner made:” (emphasis supplied) 6. The term of imprisonment for each months default “ may extend to one month” but it it is not necessary or essential that it must be one month. 7. So reckoning the totality of the facts and circumstances, I am satisfied that the sentence of imprisonment imposed on the petitioner under the four orders referred above can be modified and reduced. 8. In the result, this RP(FC) is allowed in part. The impugned orders are modified. The petitioner is sentenced to undergo imprisonment for the periods shown below in the following petitions in modification of the orders dated 26.04.07 passed by the learned Judge of the Family Court: 1. CMP No.509/04 - SI for three months 2. CMP No.547/05 - SI for six months 3. CMP No.465/06 - SI for six months 4. CMP No.465/07 - SI for six months Total - Twenty one months 9. The direction issued by the learned Judge of the Family R.P.(FC) No. 99 OF 2008 6 Court that the sentence shall run consecutively is upheld. 10. Communicate the order to the petitioner in person and the court below forthwith. Court below shall forthwith take necessary steps to issue revised warrants of commitment. R. BASANT, JUDGE ttb R.P.(FC) No. 99 OF 2008 7 R.P.(FC) No. 99 OF 2008 8