IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP(Family Court) No. 504 of 2007()
1. DAMODARAN,
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.G.G.MANOJ(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :06/02/2008
O R D E R
R. BASANT, J.
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R.P.F.C.No. 504 of 2007
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Dated this the 6th day of February, 2008
O R D E R
The petitioner has suffered an order under Section 125
Cr.P.C. to pay maintenance to his wife and child at the rate
Rs.500/- each p.m. That order has become final. The petitioner
did not make the payment of the amounts due. The claimants, in
these circumstances, went before the Family Court claiming
recovery of the amounts. The amounts could not be recovered
and ultimately the learned Judge of the Family Court, invoking
his powers under Section 125(3) Cr.P.C., directed the petitioner
to undergo imprisonment for default in making the payment of
the amounts due.
2. Four C.M.P.s were filed by the claimants and in three of
such petitions the petitioner was sentenced to undergo S.I. for a
period of 12 months each. In the fourth, the learned Judge
sentenced the petitioner to undergo imprisonment for a period of
11 months. Separate orders were passed in these petitions on
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15.5.2007. The petitioner continues in custody from that date. The
petitioner did not challenge the orders by filing any revision petition.
He has later preferred this revision petition challenging the orders
passed in all the four petitions.
3. The petitioner had no counsel to represent him and therefore
it was directed that the services of a legal aid counsel be made
available to the petitioner. Accordingly Sri. G.G. Manoj has entered
appearance. Arguments have been heard.
4. The learned counsel, Sri. Manoj, contends that though the
orders passed by the learned Judge cannot be said to be illegal or
irregular, on behalf of the petitioner he wants to urge the only
contention that the sentence imposed is excessive. The totality of
circumstances may be taken into consideration. The fact that the
petitioner remains in custody from 15.5.2007 may be taken into
consideration. It is unlikely that he will go to prison and remain there
to undergo the sentence of imprisonment till now if he could in any
manner raise the amounts, submits the counsel. The counsel only prays
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that leniency may be shown and the sentence imposed on the petit
oner may be reduced.
5. Notice was given to the respondents/claimants. They have
entered appearance through counsel. The learned counsel submits that
there is no room for leniency at all. The petitioner is adamantly
refusing to pay any amount as maintenance. His obstinacy and
adamancy is revealed from his choosing to go to prison without
making any payment. The default is for the period from 1.10.1999 to
1.8.2005, submits the learned counsel for the petitioner.
6. I have considered all the relevant circumstances. I take note
of the fact that the petitioner has been remaining in custody from
15.5.2007. I take note of the further fact that he has not been able to
make any payment so far. I do also take note of the fact that he has not
been able to even engage a counsel of his own to advance the above
sole contention regarding leniency. Taking the totality of
circumstances into account, notwithstanding the fact that the plight of
the claimants is also very pathetic, I am satisfied that severity of the
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sentence can be reduced. This revision petition can succeed only to the
above extent. In the nature and circumstances of the case, I am
ignoring and overlooking the technical inadequacy that no separate
revisions have been filed to challenge the different orders.
7. In the result:
(a) This revision petition is allowed in part.
(b) The sentences imposed on the petitioner in the four petitions,
i.e. C.M.P. Nos. 1952 of 2000, 1718 of 2001, 288 of 2003 and 1197 of
2005 as per orders dt. 15.5.2007 are reduced to S.I. for a period of four
months each.
8. Communicate the above direction to the learned Judge of the
Family Court forthwith, who shall issue revised warrant of
commitment immediately.
(R. BASANT)
Judge
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