IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 RPFC.No. 20 of 2008() --------------------- AGAINST THE ORDER DATED / / IN CMP.1449/04,1374/05,332/07 IN MC.5/2003 OF THE FAMILY COURT , .................... REV. PETITIONER(S): APPELLANT ----------------------------- ISMAIL, C.NO.5205, CENTRAL PRISON, KANNUR. BY ADV. SRI.K.RAKESH ROSHAN RESPONDENT(S): --------------- 1. NADUVIL KALLACHIYIL AYISHA, D/O. MOIDU, IRINGANNUR AMSOM DESOM, VATAKARA TALUK. 2. AJINAS (MINOR). 3. ASMINA (MINOR). 2ND AND 3RD RESPONDENTS REP. BY GUARDIAN 1ST RESPONDENT. 4. STATE OF KERALA. PUBLIC PROSECUTOR SRI.T.SETHUMADHAVAN FOR R.1,2,3 SRI.P.G.PARAMESWARA PANICKER (SR.) FOR R.1,2,3 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 20 of 2008 ------------------------------------------------- Dated this the 24th day of September, 2008 ORDER The petitioner has suffered an ex parte order directing payment of maintenance at the rate of Rs.1,500/-, Rs.1,000/- and Rs.750/- per mensem respectively to his wife and two minor children. That order was passed on 1/12/03 directing payment of maintenance from 8/1/03. The petitioner did not make the payments. Three execution applications were filed by the claimants claiming maintenance due for a period of 20 months, 18 months and 12 months respectively. The amounts were not paid and the learned Judge of the Family Court, in these circumstances, sentenced him under Sec.125(3) to undergo imprisonment for a period of 12 months each. The petitioner has come to this Court claiming to be aggrieved by the impugned orders. R.P.(FC) No. 20 of 2008 -: 2 :- 2. By an interim order passed by this Court, the petitioner paid an amount of Rs.5,000/-; but did not comply with the direction to pay the subsequent amounts. He was at large from 3.4.08 to 22/8/08 on the strength of the interim order passed in this case. The petitioner has otherwise been continuing in custody from 6/8/07 with this gap of the period from 3.4.08 to 22/8/08. 3. Efforts were made to settle the dispute. But it is evident that the petitioner has not been able to settle the dispute. It is not necessary for me to go into the reasons on account of which the dispute was not settled. 4. Now the learned counsel for the petitioner raises only one contention. He submits that the petitioner is unable to make the payment. The plight of the petitioner may be taken into account. He has been remaining in custody from 6/8/07. This is not a case where the petitioner is deliberately not making the payment. It is a case of real inability on the part of the petitioner to make the payment. This Court may take a lenient view and may, in these circumstances, reduce the sentence imposed. This is the short contention raised. R.P.(FC) No. 20 of 2008 -: 3 :- 5. The learned counsel for the respondent only submits that appropriate orders may be passed. 6. I have taken into consideration all the relevant circumstances. I am satisfied that a lenient view can be taken. It is true that for every month of default a sentence of imprisonment for one month can be imposed under Sec.125(3) Cr.P.C. But merely because the maximum sentence is so stipulated, it is not necessary for this Court in all cases to impose such maximum sentence. I take note of the fact that there must be an anxiety on the part of the authorities to ensure that an order under Sec.125 Cr.P.C. is executed and that no person should be tempted to violate such an order; but even then I am satisfied that the quality of mercy which is fundamental in administration of justice must be shown and the sentence imposed can be reduced. 7. In the result: (a) This RP(FC) is allowed. (b) The sentence imposed on the petitioner as per the three impugned orders referred above is reduced to imprisonment for a period of six months each. R.P.(FC) No. 20 of 2008 -: 4 :- 8. A revised warrant of commitment shall be issued by the court below. I make it clear that the sentence is imposed after taking into account the payment of Rs.5,000/- which has already been made. The sentence imposed shall be reckoned as imposed for default in payment of maintenance for a period of 12 months in each case. This is stated so to facilitate computation for the purpose of release if any part payment were hereafter made by the petitioner. 9. Communicate a copy of this order to the court below and the prison authorities forthwith. Revised warrant of commitment shall be issued by the court below immediately. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge R.P.(FC) No. 20 of 2008 -: 5 :- R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 20 of 2008 ------------------------------------------------- Dated this the 24th day of September, 2008 ORDER R.P.(FC) No. 20 of 2008 -: 6 :-