ALORA SUNDARAN Vs. MAMMALI SUMATHI

JUDGEMENT

(1.) DOES the decision in Shahada Khatoon v. Amjad Ali (2000 (1) KLT 696 (SC) fetter the powers of the Magistrate/family court to sentence a defaulter to one month's imprisonment for the default in payment of each month's maintenance? Is there a cap of one month on the total period of imprisonment which can be imposed when complaint is raised in one Execution petition about default in respect of more than one month? These are the questions of interest that arise for consideration in this revision petition.

(2.) A look at the statutory provisions first. Under section 125 Cr. P. C. a father/husband/child having sufficient means, who refuses or neglects to maintain his child/wife/parent unable to maintain himself or herself, can be visited with an order directing payment of maintenance for each month. If he commits default in making such payment, such order passed by the criminal court can be enforced under Section 125 (3) Cr. P. C. by a sentence of imprisonment. I extract below Section 125 (3) Cr. P. C. S. 125 Order for maintenance of wives, children and parents: XX XX XX (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: (emphasis supplied)

(3.) THE counsel argues that the Supreme Court in Shahada's case (supra) has laid down the proportion that whatever be the number of months of default, a defaulter can be sentenced to imprisonment only for one month if such complaint about breach in respect of plurality of months is made in one execution petition.