Narayanan v. Latha & Lamuna (RPFC 145 of 2008)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 RPFC.No. 145 of 2008() ---------------------CMP.258/2006 OF FAMILY COURT, PALAKKAD .................... NARAYANAN, S/O.VELAYUDHAN, AGED 34 OF 2008. KALATHIL VEEDU, MANNADI NOCHULLI P.O., KUZHALMANNAM, ALATHOOR TALUK, KUZHALMANNAM POLICE STATION LIMIT. BY ADV. ADV.LEAN JOSE.P.(S.B) ## 1. LATHA, AGED 27 YEARS, D/O.VELAYUDHAN, KALATHIL VEEDU, RAM PARAMBU, PALLANCHATHANUR AMSOM, ## 2. LAMUNA, AGED 10 YEARS (MINOR), GUARDIAN/MOTHER THE FIRST PETITIONER LATHA. BY SRI.RAJESH SIVARAMANKUTTY FOR R1 & R2 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY PASSED THE ## **R.BASANT, J.** ## **----------------------** R.P.F.C.No.145 of 2008 ---------------------------------------Dated this the 18[th] day of July 2008 ## **ORDER** In this R.P.F.C preferred through prison authorities, the petitioner, who is undergoing imprisonment as per common order passed in three petitions filed under Section 125(3) Cr.P.C, assails the sentence of imprisonment for thirty months (2½ years) imposed on him by the learned Judge of the Family Court. 2. By the order passed under Section 125 Cr.P.C, the petitioner was directed to pay maintenance at the rate of Rs.500/- and Rs.400/- per mensum to his wife and child. The first petition C.M.P.No.258/2006 is for a period of thirty five months for an amount of Rs.31,500/-. That petition was preferred within time, the same having been filed within one year from the date on which the order was passed in the M.C directing payment of maintenance from the date of the petition. An amount of Rs.8,900/- - for a period of about 11 months (10 x 900/-) was paid in that petition. Arrears for about 25 months was thus there in C.M.P.No.258/2006. R.P.F.C.No.145/2008 2 3. In the second petition C.M.P.No.315/2006 arrears for the period of ten months from 01/05/2004 to 28/2/2005 (10 x 900/-) was claimed. That petition was filed on 28/2/2005. No payment was made in that petition. 4. In the third petition C.M.P.No.680/2007 filed on 20/4/2007, arrears of maintenance for fifteen months from 29/9/2005 to 28/12/2006 was claimed. No amount was paid in that petition. The learned Judge of the Family Court in these circumstances proceeded to dispose of all the three petitions by the impugned common order. The learned Judge did not pass separate sentences in each of these three cases; but proceeded to impose a sentence of imprisonment for thirty months (2 ½ ) for default of payment of the amounts in the three petitions. 5. The petitioner continues in custody. He has preferred this R.P.F.C through prison authorities. He was unable to engage a counsel of his own. A State Brief Counsel has been appointed to render legal aid to the petitioner. The respondent has entered appearance. Arguments of the counsel have been R.P.F.C.No.145/2008 3 heard. 6. The learned counsel for the petitioner brings to the notice of the court first of all a legal defect/inadequacy inasmuch as maintenance for the period from 29/9/2005 to 28/12/2006 has been claimed in the third application C.M.P.No.680/2007 filed on 20/4/2007. The learned counsel argues that in the light of the stipulation in Section 125(3) Cr.P.C in the application filed on 20/4/2007, arrears of maintenance for the period from 20/4/2006 to 20/4/2007 alone could have been claimed. Therefore that petition can be held to be valid only for the period from 20/4/2006 to 28/12/2006, that is for a period of about eight months. I find the said objection raised to be absolutely justified. C.M.P.No.680/2007 can be reckoned as application for the period of eight months of default, that is from 20/4/2006 to 28/12/2006. 7. That finding is too inadequate to help the petitioner to claim any effective relief. There was default of twenty five months in C.M.P.No.258/2006, of ten months in C.M.P.No.315/2006 and eight months (which alone is actionable R.P.F.C.No.145/2008 4 as already observed) in C.M.P.No.680/2007. That works out to a total of 43 months and the sentence imposed is only imprisonment only for a period of forty months. 8. The learned counsel for the petitioner in these circumstances prays that leniency may be shown to the petitioner. The petitioner has remained in custody from the date of the common order that is 14/11/2007. He has not even been able to engage a counsel of his own. In these circumstances, in any view of the matter, this court may be pleased to modify and reduce the period of sentence imposed under Section 125(3) Cr.P.C, submits the learned counsel for the petitioner. 9. The learned counsel for the respondent opposes the application. She submits that there are no circumstances whatsoever to show leniency to the petitioner who has refused to make payments of amounts due. 10. I do take note of the fact that an amount of Rs.8,900/has been paid by the petitioner. The petitioner has remained in custody from 14/11/2007. He has not even been able to engage a counsel of his own to file this revision petition. It is not R.P.F.C.No.145/2008 5 difficult now to understand that whatever be the reason for the accrual of arrears, at the moment, the petitioner is unable to raise the amount to discharge his liabilities. I have already held in the decision in **Moideenkutty v. State of Kerala [2008(3) KLT 8]** that though the sentence imposed for each month of default can go up to one month it is not invariable or essential that such maximum sentence must be imposed for default of payment of every month. All the relevant circumstances have to be taken into account and an appropriate direction can be issued by the Family Court. All relevant facts and the realities of the situation must be taken into account. While it is invariable that a loud and eloquent message must be conveyed that defaulters will not be able to avoid liability easily, the facts scenarios in each case and the plights of the petitioners will also have to be considered. Having rendered my very anxious consideration to all the relevant inputs, I am persuaded to agree that the sentence imposed can be modified and reduced notwithstanding the opposition of the learned counsel for the respondent. Imprisonment for a period of fifteen days for default in payment R.P.F.C.No.145/2008 6 of maintenance for each month shall, I am satisfied, serve the ends of justice eminently. In that view of the matter, for the default committed for 43 months, I am satisfied that a sentence of S.I for twenty months shall eminently serve the ends of justice. 11. In the result, a) This R.P.F.C is allowed in part. b) Sentence imposed on the petitioners under Section 125(3) Cr.P.C is modified and reduced. The sentence of imprisonment is reduced to S.I for a period of twenty months. 12. The learned counsel for the respondent submits that as a matter of fact, the petitioner has landed property measuring 15 cents. It was for the respondent to have pointed out that to the learned Judge of the Family Court while attempting to recover the amount. It is not too late yet. The respondent has not missed the bus yet. The respondents application for recovery were made in good time as already indicated - except the third petition where the claim is not maintainable in part. If the respondent feels that there is some property against which the R.P.F.C.No.145/2008 7 court can or could have proceeded, the respondent shall be at liberty to bring that fact to the notice of the learned Judge of the Family Court whereupon the learned Judge following the dictum in **Rayinkutty v. State of Kerala [2008(2) KLT 19]** must continue to take steps to recover the amount by sale of such immovable property. The said decision is authority for the proposition that undergoing of the default sentence will not wipe off the liability to pay the amount and if at any subsequent point of time it is revealed that the defaulter has or had landed property, it is open to the court to proceed against such property. 13. Communicate this order to the learned Judge of Family Court forthwith. The learned Judge shall issue revised warrant of commitment. Communicate the order to the prison authorities and to the petitioner through the prison authorities. ## **(R.BASANT, JUDGE)** jsr