IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP(Family Court) No. 434 of 2007()
1. KUNHI, S/O. PUTHUSSERI IMBICHI AHAMMED,
... Petitioner
Vs
1. STATE OF KERALA.
... Respondent
For Petitioner :ADV.MANJU ANTOONY(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :19/02/2008
O R D E R
R. BASANT, J.
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R.P.F.C.No. 434 of 2007
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Dated this the 19th day of February, 2008
O
R D E R
This revision petition has been filed by a person in custody
who has been sentenced by the Family Court, Kozhikode, to
undergo imprisonment for a total period of 32 months as per
three different orders – all dated 30/4/07. This revision petition
has been preferred by the petitioner in custody through the
prison authorities and the same has been numbered as one
revision petition. Composite challenge is made against three
orders passed in C.M.P. Nos.264 of 2001, 1068 of 2002 and 769
of 2003. The petitioner faces a sentence of imprisonment for 11
months, 12 months and 9 months respectively in these petitions.
2. Notice was ordered to the respondents. Notice has been
served. There is no appearance for the respondents. The
petitioner, as stated earlier, has presented this revision petition
through the prison authorities. He has no counsel to appear for
him. Advocate Mr.Manju Antony was appointed as State Brief
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counsel to render assistance to the petitioner. The learned counsel for
the petitioner has advanced his arguments. Records of the court below
have been called for.
3. At the outset I must say that I am ignoring the technical
inadequacy that one revision petition has been filed to assail the orders
in all the three cases. That inadequacy notwithstanding, I shall in this
revision petition proceed to consider the validity of all the three orders.
4. The records show that the direction under Section 125 Cr.P.C.
was issued on the basis of consent of both the contestants and the
endorsement made by them to that effect on the petition. The
petitioner herein was directed to pay an amount of Rs.250/- each to the
claimants – wife aged 27 years, three children aged 12 years, 7 years
and 6 years respectively. That order was passed on 25.10.1997. The
wife complained of non-payment of maintenance at the rate of
Rs.1,000/- p.m. for 11 months, 12 months and 9 months in these three
petitions filed in 2001, 2002 and 2003. The learned Judge, after taking
the necessary steps and being unable to recover the amounts,
proceeded to pass the impugned orders.
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5. Called upon to explain the grounds on which the petitioner
wants to assail the impugned order, the learned counsel for the
petitioner only prays that leniency may be shown on the question of
sentence.
6. Under Section 125(3) Cr.P.C. for each month’s default
imprisonment for a period of one month can be awarded. But it is not
the law that the maximum has to be imposed in all cases. The learned
counsel for the petitioner submits that this Court may take note of the
hard plight of the petitioner, who has been remaining in custody from
30.4.007 and has not been able to even engage a counsel in this
revision petition to espouse his cause. It is really a case of genuine
hardship for the petitioner and taking that reality into account the
sentence may be suitably modified, submits the learned counsel.
7. I have considered all the relevant inputs. The courts under
Section 125 Cr.P.C. have the obligation to translate the legislative
compassion in favour of the weaker and under privileged into tangible
orders. The petitioner has been directed to pay only an amount of
Rs.250/- p.m. each to his wife and children and it is idle to assume that
he would not have been able to discharge such liability from time to
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time. However, I agree with the learned counsel for the petitioner that
some leniency can be shown. I am satisfied, in these circumstances,
that the sentence imposed under Section 125(3) Cr.P.C. in the three
orders which are impugned in this revision petition, can be modified
and reduced.
8. In the result:
(a) This revision petition is allowed.
(b) The impugned orders are upheld in all other respects. But
the sentences imposed on the petitioner as per orders dt. 30.4.2007 in
C.M.P. Nos. 264 of 2001, 1068 of 2002 and 769 of 2003 (all in
M.C.11 of 1997) are modified and reduced to imprisonment for a
period of five months, six months and four months respectively (total
15 months). The learned Judge of the Family Court, Kozhikode shall
issue revised warrant incorporating the modification forthwith.
8. The Registry shall send back the records to the Family Court
forthwith.
(R. BASANT)
Judge
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