IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 100 of 2008()
1. DINESAN,S/O. LAKSHMANA VYDIAR,
... Petitioner
Vs
1. SOBANA, D/O. THEYYAN, AGED 36 YEARS,
... Respondent
2. DISHOB, (MINOR),
3. DISHODH (MINOR),
For Petitioner :SRI.MANJU ANTONY(S.B)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :20/06/2008
O R D E R
R. BASANT, J.
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R.P.(FC) No. 100 OF 2008
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Dated this the 20th day of June, 2008
O R D E R
This revision petition is filed by a prisoner in custody who
has been sentenced under Section 125(3) Cr.P.C in three
separate petitions to undergo imprisonment for a total period of 24
months.
2. The prisoner has preferred this revision petition through
prison authorities. Service of a legal aid/State Brief counsel has
been made available to him. The delay in filing the petition has
been condoned. Though orders in three separate applications are
challenged, separate revisions have not been filed. The challenge
raised against the orders passed in three different petitions has
been taken up for consideration in this one RPFC, ignoring the
technical flaw. The learned counsel for the petitioner, Sri.Manju
Antony, has advanced his arguments.
3. The petitioner’s wife and two children had filed an
application under Section 125(3) Cr.P.C and by an order in MC
No.68/03, the petitioner was directed to pay maintenance to them
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at the rate of Rs.500, Rs.250/- and Rs.250/- per mensem
respectively on 23.02.04. The petitioner did not comply with the
said orders. This obliged the claimants to seek enforcement of the
order of maintenance. CMP Nos.854/04, 168/06 and 843/07 were
filed claiming the defaulted amounts. All these petitions were filed
claiming defaulted amounts for a period of 15 months, 12 months,
and 12 months respectively. In CMP No.854/04 an amount of
Rs.8,000/- appears to have been paid and the balance due was
only Rs.4,000/- on the date of the impugned order. In CMP
No.168/06, an amount of Rs.4,000/- appears to have been paid
and the balance due was only Rs.8,000/-. In CMP No.843/07 no
amount was paid and the balance due was maintenance for the
period of 12 months.
4. After complying with the legal procedure as payments
were not forthcoming, non bailable warrants were issued against
the petitioner and he was brought in custody to court. The learned
Judge of the Family court sentenced the petitioner to undergo
imprisonment for a period of 4 months, 8 months and 12 months
respectively in CMP Nos.854/04, 168/06 and 843/07.
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5. The petitioner assails these orders before me. The only
ground of challenge is that the petitioner must have been given
more time to make the payment and that, at any rate, the sentence
of imprisonment imposed is excessive. I find no merit in the
former grievance as sufficient time appears to have been granted
before the impugned orders were passed. But, I find merit in the
contention of the learned counsel that it was not necessary to
impose the maximum permissible sentence on the petitioner in all
the three applications. Under Section 125(3) Cr.P.C, it is true that
the imprisonment for a period of one month can be imposed for
default in payment of maintenance for every month. But this is not
an inflexible or rigid rule that each sentence must be imposed in
every case. Considering the totality of circumstances, leniency
must have been shown to the petitioner, it is contended.
5. I take note of the fact that even though the petitioner was
sent to prison as per order dt.02.08.07, he was not been able to
make any further payment and he has been continuing in custody
for the past about one year. If he had any resources, it is
reasonable to assume that he would not have chosen to continue
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in prison all these days. In this view of the matter, I find that
leniency can be shown. It is certainly not the law that
imprisonment must be imposed for a period one month for default
in payment of maintenance for one month. The quality of mercy
and awareness of realities must be there. Section 125(3) Cr.PC
only stipulates the maximum period of imprisonment and I am
satisfied in the facts and circumstances of this case that leniency
can be shown to the petitioner.
6. In the result, this RP(FC) is allowed. The impugned
orders are modified. The petitioner is sentenced to undergo
imprisonment for the periods shown below in the following
petitions in modification of the orders dated 02.08.07 passed by
the learned Judge of the Family Court:
1. CMP No.854/04 – SI for two months
2. CMP No.168/06 – SI for four months
3. CMP No.843/07 – SI for six months
Total – Twelve months
7. The direction issued by the learned Judge of the Family
Court that the sentences shall run consecutively is upheld.
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8. Send back the records to the learned Judge of the Family
Court forthwith. Revised warrants of commitment shall be issued
by the learned Judge. Communicate copy of the order to the
prisoner in custody also forthwith.
R. BASANT, JUDGE
ttb
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