IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 RPFC.No. 237 of 2008() ---------------------- AGAINST THE ORDER IN CMP.NOS.297/2004 & 1434/05 IN MC.43/2003 of .................... PETITIONER: ----------------- SHAJI, S/O.NARAYANAN NAMBIAR, C.NO.5975,CENTRAL PRISON, KANNUR. BY ADV. SRI.N.K.SUBRAMANIAN (STATE BRIEF) RESPONDENTS: RESPONDENTS ------------------------ 1. MANDAKINI, D/O.BALAKURUP, OTHAYOTH HOUSE CHERODE AMSOM DESOM, VATAKARA TALUK. 2. SARANYA (MINOR). 3. ASWATHI, (MINOR) 2 & 3 MINORS REP. BY IST RESPONDENT AS GUARDIAN BY THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 237 of 2008 ------------------------------------------------- Dated this the 21st day of August, 2008 ORDER This RP(FC) has been filed by the petitioner through prison authorities to assail two orders – both dated 17/3/08, passed under Sec.125(3) Cr.P.C. imposing a sentence of imprisonment for 12 months in each case consequent to the failure on the part of the petitioner to pay maintenance awarded to his wife and two minor children. 2. The petitioner had suffered an order dated 29/10/03 directing him to pay maintenance at the rate of Rs.1,500/-, Rs.750/- and Rs.500/- respectively to his wife and two minor children with effect from 5/2/03. The petitioner did not make the payment of the amounts as directed by the Family Court and this obliged the claimants to come before the Family Court with two petitions – both under Sec.128/125(3) Cr.P.C. R.P.(FC) No. 237 of 2008 -: 2 :- claiming steps for recovery of the amounts. The learned Judge of the Family Court followed the procedure prescribed by Code; but the amounts remained unpaid. In these circumstances, the learned Judge proceeded to pass the impugned orders imposing a sentence of simple imprisonment for a period of 12 months for default in payment in each petition. Thus, the petitioner faces the prospect of imprisonment for 24 months in prison. The petitioner remains in custody from 17/3/08. He has filed this petition through prison authorities. Ignoring the technicality that one revision petition has been filed to assail two separate orders, the revision petition has been admitted and the arguments have been heard. As the petitioner is unable to engage a counsel, the services of a State Brief counsel was made available to him. 3. The respondent has not been served and I am satisfied that it is not necessary to wait for service of notice on the respondent to consider the short plea raised in this revision petition. 4. The learned counsel for the petitioner assails the impugned orders only on one short ground. The learned counsel contends that the sentence imposed is unduly harsh and prays that leniency may be shown taking the totality of circumstances R.P.(FC) No. 237 of 2008 -: 3 :- into account. 5. I take note of the fact that for 24 long months no amounts have been paid towards maintenance by the petitioner notwithstanding a specific direction of the Family Court to that effect. The courts have to zealously ensure that the orders passed under Sec.125 Cr.P.C. do not remain on paper and are executed to the benefit and advantage of the unfortunate claimants. When recovery is not possible by issue of distress warrant, the amount outstanding can be attempted to be recovered by ordering detention of the defaulter in prison. A realistic view will have to be taken by the courts. Merely because it is permissible under law to impose a maximum sentence of imprisonment for one month for breach of the obligation to pay maintenance for each month, it is not invariably necessary that such maximum sentence can, need or ought to be imposed. I cannot lose sight of the fact that the petitioner has remained in custody from 17/3/08. I do also take note of the fact that the petitioner has not been able to engage a counsel to prosecute this RP(FC) on his behalf. Genuine financial difficulty though the petitioner may himself have to a great extent responsible for the same, is definitely standing in the way of the petitioner discharging his accumulated liability. I am, in these R.P.(FC) No. 237 of 2008 -: 4 :- circumstances, satisfied that mercy which is the primary quality of justice can be shown to the petitioner. I am satisfied that imposition of a default sentence of imprisonment for half a month for default committed for every month in the payment of maintenance shall eminently meet the ends of justice. 6. In the result: (a) This RP(FC) is allowed in part. (b) The impugned orders in CMP Nos.297/04 and 1434/05 in M.C.No.43/03 are modified. The sentences imposed on the petitioner by these two orders are reduced from imprisonment for a period of 12 months each to imprisonment for a period of 6 months each. The sentences shall run consecutively. 7. Communicate a copy of this order to the court below. The court below shall issue a revised warrant of commitment forthwith. Communicate another copy of this order to the prison authorities and through them to the petitioner also immediately. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge R.P.(FC) No. 237 of 2008 -: 5 :-