IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 RPFC.No. 186 of 2008() ---------------------- AGAINST THE ORDER DATED 23/04/2008 IN CMP. 1152 /2007 IN MC.559/2006 OF THE FAMILY COURT, PALAKKAD. .................... REV. PETITIONER (S): APPELLANT. ------------------------------ BALACHANDRAN,S/O.MAHDAVAN,C.NO.6769 CENTRAL PRISON,VIYYUR. (PAYYAMKODE, KAYARADI, NEMMARA,PALAKKAD) BY ADV. SMT.RESHMI.K.V(STATE BRIEF) RESPONDENT(S): --------------- 1. SUMA, W/O.BALACHANDRAN, BOYEN COLONY, THIRUTHAM PADAM, POTHUNDI P.O., NEMMARA,PALAKKAD. 2. SAJI, (MINOR 9 YEARS), S/O.BALACHANDRAN,BOYEN COLONY, THIRUTHAM PADAM, POTHUNDI P.O., NEMMARA,PALAKKAD. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 186 of 2008 ------------------------------------------------- Dated this the 26th day of September, 2008 ORDER The petitioner has preferred this RP(FC) claiming to be aggrieved by an order passed under Sec.125(3) Cr.P.C. sentencing him to undergo imprisonment for a period of 3 years or till payment of Rs.68,000/- is made whichever is earlier. 2. The petitioner has suffered an order directing him to pay maintenance at the rate of Rs.450/- per mensem to the 1st claimant/wife and Rs.400/- per mensem to the child – the 2nd claimant. Maintenance was ordered to be paid from the date of the petition and on the date of the application, there was arrears of maintenance for 80 long months. The total amount payable was Rs.68,000/- (Rs.850/- x 80). No amount was paid. The learned Judge of the Family Court, in these circumstances, R.P.(FC) No. 186 of 2008 -: 2 :- directed the petitioner to undergo imprisonment for a period of 3 years (36 months). 3. The respondent is not served and the attempts to effect service on the respondent has not been successful. The learned counsel for the petitioner (State Brief counsel) has advanced arguments. The learned counsel for the petitioner submits that on merits, the petitioner has no contentions to urge. The application for execution has been filed within time and there is default for a period of 80 months. For each month default one month's sentence can be imposed; but the court below has chosen to impose the sentence of 36 months only for default for a period of 80 months. 4. The learned counsel, who appears as State Brief counsel, submits that leniency may be shown to the petitioner. He has remained in custody from 21/4/08. It is evident now that his failure to pay the amount is only on account of his genuine financial difficulty. He has remained in custody from 21/4/08 and has not even been able to engage a counsel to prosecute this RP(FC). Taking the totality of circumstances into account and R.P.(FC) No. 186 of 2008 -: 3 :- considering the fact that there is a huge amount in arrears, mercy may be shown to the petitioner and the quantum of sentence may be reduced. 5. I have considered all the relevant circumstances. I take note of the huge amount of arrears. I take note of the fact that the arrears has occurred over a period of 80 months. I take note of the fact that the petitioner, who remains in custody from 21/4/08, has not been able to make any payment; nor has he even been able to engage a counsel. Every court must alertly and zealously insist and ensure that the amounts due under an order passed under Sec.125 Cr.P.C. are paid and such orders are executed. All the same, leniency can, in the facts and circumstances of this case, be shown to the petitioner certainly. I am satisfied that imposition of a sentence of simple imprisonment for a period of 2 years shall serve the ends of justice eminently. 6. In the result: (a) This RP(FC) is allowed in part. (b) The sentence of imprisonment is reduced from simple R.P.(FC) No. 186 of 2008 -: 4 :- imprisonment for a period of 3 years to simple imprisonment for a period of 2 years. 7. Communicate a copy of this order to the court below. The court below shall issue a revised warrant of commitment. Communicate a copy of this order to the prisoner also through prison authorities. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge R.P.(FC) No. 186 of 2008 -: 5 :-