KUNHI v. STATE OF KERALA

BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 19/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 434 of 2007 - - - - - - - - - - - - - - - - - - - - - - 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.

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 R.P.F.C.No. 434 of 2007 2 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.

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.

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. R.P.F.C.No. 434 of 2007 3

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.

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.

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 R.P.F.C.No. 434 of 2007 4 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.