IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 RPFC.NO. 26 OF 2009() -------------------------------- AGAINST THE ORDER DATED 10/11/2008 IN CMP 838/06 CMP(EX)66/08 ,456/08 IN MC.27/2005 OF .................... APPELLANT ------------------ RATNA RAJ.V., AGED 41 YEARS, S/O.MADHAVAN, VALLATHANA HOUSE, B.G.ROAD, KOZHIKODE, NADAKKAVU - PSL. BY ADV. SRI.PRAVEEN K.JOY(STATE BRIEF) RESPONDENT(S): ----------------------------- 1. SHEEJA.N., AGED 30 YEARS, D/O.APPU, MANBUKUNNATHARAMEETHAL, P.O. KANNANKARA, CHELANNUR, KOZHIKOD. 2. ASWIN RAJ, AGED 6 YEARS, S/O.RATNA RAJ (MINOR), REP. BY MOTHER 1ST RESPONDENT. ADV. SRI.P.V.KUNHIKRISHNAN FOR R1 & R2 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.P(FC) NO.26 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of August, 2009 O R D E R -------------- Heard both sides. 2. This revision is in challenge of orders of detention passed by the Family Court, Kozhikode on C.M.P. No.838 of 2006, C.M.P. No.66 of 2008 and and C.M.P. No.456 of 2008 in M.C. No.27 of 2005. Petitioner is sentenced to undergo simple imprisonment for a total period of thirty months for his failure to comply with the order for payment of maintenance. In the petition submitted from the jail petitioner sates that he is an epileptic patient, continuing treatment even in the jail and unable to earn. He therefore prayed that he may be released. Learned counsel for petitioner appointed on state brief contends that in view of the illness of petitioner he may be exonerated from liability to pay maintenance. It is also contended that petitioner is undergoing imprisonment for about a year. Learned counsel for respondent opposed the prayer. 3. Though it is stated in the memorandum of revision that petitioner is an epileptic patient on going through the records it is seen that he had no such case in the counter statement filed in M.C. No.27 R.P(FC) No.26 of 2009 -: 2 :- of 2005. Instead he claimed that he is a coolie by occupation. It is unlikely that epilepsy developed all on a sudden since it is a genetic disease. It is seen from the order in M.C. that court below found that petitioner is capable of earning Rs.150/- per day. Though petitioner claimed that he is undergoing treatment in jail, no record is submitted along with the revision petition to prove that. Therefore the contention that petitioner is an epileptic patient cannot be accepted. 4. There is no contention that the claim is barred by limitation in view of the provisions in Section 125(3) of the Code of Criminal Procedure. What remained for consideration is only whether sentence imposed is excessive. On C.M.P. 838 of 2006 and C.M.P. No.66 of 2008 simple imprisonment for 12 months each is awarded. On C.M.P. No.456 of 2008 simple imprisonment for six month is awarded. There is a direction that the sentences shall run consecutively. Having regard to the facts of the case I am satisfied that simple imprisonment for six months each is sufficient so far as C.M.P. Nos.838 of 2006 and 66 of 2008 are concerned. Sentence awarded in C.M.P. No.456 of 2008 is reasonable and require no interference. Resultantly, this revision petition is allowed to the extent that sentence awarded to the petitioner on C.M.P.Nos. 838 of 2006 and 66 R.P(FC) No.26 of 2009 -: 3 :- of 2008 is modified as simple imprisonment for six months each. No interference is needed with respect to the sentence awarded on C.M.P.No.456 of 2008. It is directed that the sentence of imprisonment will run consecutively. Learned Judge, Family Court is directed to issue modified warrant to the Superintendent of Central Prison, Kannur where the petitioner is detained. THOMAS P.JOSEPH, JUDGE. vsv