MAHBOOB BASHA Vs. NANNIMA ALIAS HAJARA BIBI

JUDGEMENT

(1.) Petitioner is the husband against whom the first respondent and her child, the second respondent herein, got an order of maintenance in a petition filed under section 125 Cr.P.C. in M.C. No.6/99 on the file of Judicial Magistrate No.II, Sankagiri directing the petitioner to pay Rs.500/- per month to each respondent. The revision petitioner failed to pay any money. Therefore, the respondents filed three applications under section 128 Cr.P.C. to enforce the order of maintenance. In Crl.M.P. Nos.794/2003 and 796/2003 the learned Magistrate ordered detention of the revision petitioner for 12 months. In Crl.M.P. No.795/2003 the learned Magistrate ordered detention of the petitioner for 10 months and thus 34 months imprisonment has been ordered by the learned Magistrate. The petitioner was detained from 29.10.2003 when he appeared in Court and the order came to be passed only on 20.1.2004 by the Chief Judicial Magistrate, Villupuram.

(2.) Mr.S.Manikumar, learned counsel appearing for the petitioner would contend that under section 125(3) Cr.P.C., a Magistrate can order detention for failure to comply with the order of maintenance only for one month and not for several months for the failure to pay maintenance for the number of months. In respect of his contention the learned counsel pressed into service the judgment of the Supreme Court in Shahada Khatoon and others v. Amjad Ali and others {(1999) 5 SCC 672} wherein the Supreme Court has held as follows: "The short question that arises for consideration is whether the learned Single Judge of the Patna High Court correctly interpreted sub-section (3) of Section 125 of CrPC by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned counsel for the appellants contends that the liability of the husband arising out of an order passed under Section 125 to make payment of maintenance is a continuing one and on account of non-payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. We are unable to accept this contention of the learned counsel for the appellants. The language of sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month. For breach or non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month. In that view of the matter the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. The appeal accordingly fails and is dismissed."

(3.) Under sub-section (3) of section 125 Cr.P.C. it has been made clear that the power of the Magistrate imposing imprisonment on the failure of the husband to pay maintenance has been restricted to only one month or until payment if sooner made. After the one month, for every breach or non-compliance of the order of the Magistrate, wife can approach the Magistrate once again for similar relief. Therefore, the orders of the learned Chief Judicial Magistrate made in Crl.M.P. Nos.794, 795 and 796 of 2003 are set aside since the petitioner has already been in jail for more than 3 months. These revisions are allowed. The petitioner shall be released. But the Chief Judicial Magistrate is at liberty to pass fresh orders once the wife approaches the Court for non-compliance of the maintenance order, but not more than a month on each occasion. The learned Magistrate will also take into consideration the question of limitation with regard to the arrears of maintenance as contemplated in section 125(3) Cr.P.C. and also the decision in Rajendran v. Minor Revathi, rep. by mother Maheswari (1997(1) Crimes 486) and Poorani v. Ramanathan {(2003) M.L.J. (Crl.) 223}. Consequently, Crl.M.P. Nos.1109, 1110 and 1111 of 2004 are closed.