IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 RPFC.No. 435 of 2007() ---------------------- AGAINST THE ORDER DATED / / IN CMP 578 2006 IN MC.410/2003 OF THE FAMILY COURT, KOZHIKODE. .................... PETITIONER: -------------------- THUNDIYIL T.M. ALAVI, S/O. MOIDEEN, C.NO.5061, CENTRAL PRISON, KANNUR. (CHEERAMKKUNNU, MEENANGADI, NOW RESIDING AT PADERI COLONY,WARD NO.10,HOUSE NO.21,MADAKKARA P.O NENMENI PANCHAYAT, VIA. SULTHAN BATTERI, WAYANAD, SULTHAN BATTERI PSL) BY ADV. ADV.LIJU M.P (STATE BRIEF) RESPONDENT(S): --------------- 1. DHARMAKUNDIL SUBAIDA, D/O. ALI, MOONAMKAI, KAVILUMPARA AMSOM DESOM, VADAKARA TALUK. 2. NJMATH (MINOR), AGED 12 YEARS, REPRESENTED BY MOTHER AS GUARDIAN, 1ST PETITIONER. 3. STATE OF KERALA. BY PUBLIC PROSECUTOR SRI.A.ANTONY FOR R1 SMT.LEELAMMA ANTONY FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- R.P.F.C. No. 435 of 2007 ------------------------------------------------- Dated this the 8th day of January, 2009 ORDER The petitioner - a person undergoing imprisonment for default in payment of maintenance, has filed this RP(FC) through prison authorities challenging three separate orders sentencing him to undergo imprisonment for a period of 11 months, 12 months and 12 months respectively for non- payment of maintenance due to his wife and child. 2. The petitioner was granted the services of a State Brief counsel, who had advanced his arguments. The counsel for the respondent has also been heard. 3. The learned counsel for the petitioner submits that the petitioner has remained in custody from 2.7.2007 under the impugned orders and he is not even able to file a revision on his own. The totality of circumstances must convey eloquently R.P.F.C. No. 435 of 2007 -: 2 :- to this Court that the petitioner is unable to raise the amount and make the payment. Otherwise he was unlikely to have continued in prison from 2.7.2007 without even preferring a revision petition. No other contentions are raised. 4. The learned counsel for the respondent submits that the petitioner has married again. 5. The only question that falls for consideration is whether any leniency deserves to be shown. This Court has considered the question in Moideenkutty v. State of Kerala (2008 (3) KLT 8) and has taken the view that the mere fact that the maximum period of imprisonment for default in payment of maintenance is fixed under law does not ipso facto justify the imposition of the maximum possible term of imprisonment against a defaulter. I have considered all the relevant circumstances. I take note of the fact that the petitioner has been remaining in custody from 2/7/07 and is unable even to prefer a revision on his own. No other relatives of his also appear to have come forward to save him and bail him out from prison. Taking the totality of circumstances into account, I am satisfied that leniency can be shown to the petitioner. Of course, this Court must zealously insist that the amounts ordered under Sec.125 Cr.P.C. are paid promptly and the directions are complied with by the persons R.P.F.C. No. 435 of 2007 -: 3 :- concerned. But all the same, I take note of the long period of detention of the petitioner and I am satisfied that leniency can be shown to him on the question of sentence. 6. In the result: (a) This RP(FC) is allowed. (b) The sentence imposed of the petitioner under the three orders is modified and reduced. (c) In modification of the sentences imposed on him, he is sentenced as follows: (i) Crl.M.P.No.1709/04 - 5 ½ months. (ii) “ 578/06 - 6 months (iii) “ 803/07 - 6 months. 7. Communicate a copy of this order to the prison authorities. Communicate the same to the Family Court also. The authorities concerned shall take necessary action forthwith. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge R.P.F.C. No. 435 of 2007 -: 4 :-