KALLAPPA Vs. YALLAUBAI

JUDGEMENT

(1.) The petitioner has sought for quashing the entire proceedings in Criminal Miscellaneous No. 613/2009, pending on the file of the Family Court, Belgaum, seeking enforcement of the order of maintenance. The petitioner herein is the husband of the respondent. The respondent filed an application for maintenance and it was granted in Criminal Miscellaneous No. 249/2007, the copy of which has been produced at 'Annexure-C'. The said application was disposed of by the order dated 24.11.2009, granting maintenance of Rs. 2,000/- per month to the petitioner from the date of filing of the petition i.e., from 28.06.2007. Accordingly, the respondent filed an application under Section 128 of the Code of Criminal Procedure in Criminal Miscellaneous No. 613/2009, claiming arrears of maintenance from 28.06.2007 till 24.11.2009, amounting to Rs. 58,000/- for 29 months. The respondent had sought for an order to confine the petitioner in prison for non-payment of the arrears of maintenance and in the circumstances, it is on 10.12.2010, that the petitioner was produced and was ordered imprisonment for 30 days and after the completion of 30 days, he was released. Again on 07.01.2011, the petitioner was produced and he was sentenced for 30 days imprisonment and released. It is on third occasion that on 05.02.2011 the petitioner was produced and as he did not pay the arrears of maintenance, he was ordered to undergo imprisonment for 30 days more. It is in these circumstances, that aggrieved by the orders, the petitioner has approached this Court to quash the entire proceedings. It is the contention of the learned Counsel for the petitioner that in an application for enforcement wherein the arrears of maintenance for more than one month is claimed, a person cannot be imprisoned for a period exceeding one month. Therefore, it is the contention that, though in the petition for enforcement, the arrears of maintenance for 29 months are claimed. The maximum sentence of imprisonment cannot exceed one month in one petition and that in case, if successive petitions are filed claiming maintenance for each month, in such circumstances, the husband can be confined in the prison for one month for non-payment of maintenance of the said month. On this aspect of the matter, he has placed reliance on the decision of the High Court of Andhra Pradesh, reported in (Abdul Gafaoor alias Ashan Vs. Smt. Hameema Khatoon and others, 2004 CrLJ 1280) and also on the decision of the Calcutta High Court reported in (Md. Jahangir, the petitioner, 2005 CrLJ 237) as could be seen from the facts and the principle laid down by the different High Courts in the decision referred to supra, it has been held that in case, if the arrears of maintenance for a period exceeding one month, is claimed in one application under Section 125(3) or 128 of the Code of Criminal Procedure, a person cannot be confined for a period exceeding one month for arrears of maintenance for recovery of arrears of more than the period of one month.

(2.) The provisions of Section 125(3) of the Code of Criminal Procedure are relevant to determine the issue and I think it is just and proper to extract the said provision here under:-