ABDUL AJIJ PUDDAN ANSARI Vs. JUBEDABAI

JUDGEMENT

(1.) This is an application filed by the husband to challenge the legality of the order dated July 10, 1981 passed by the II Joint Judicial Magistrate, First Class, Dhule, and the order dated December 9, 1981 passed by the Sessions Judge, Dhule in a proceeding under section 125(3) of the Code of Criminal Procedure (hereinafter referred to as the Code).

(2.) The facts are not in dispute and are required to be stated briefly to appreciate the grievance of the petitioner. Respondent No. 1 is the wife of the petitioner, while respondents 2 and 3 are his minor children. On June 26, 1978 respondents 1 to 3 filed an application before the Judicial Magistrate, First Class, Dhule for maintenance as provided by section 125 of the Code. On January 27, 1981, the application was granted and respondent No. 1 was awarded the maintenance of Rs. 50/- per month, while respondents 2 and 3 were each awarded Rs. 30/- per month. The Magistrate also directed that the amount of maintenance shall be paid from the date of filing of the application i.e. June 26, 1978. As the husband failed to pay the amount of maintenance, respondents 1 to 3 filed application for enforcement as contemplated under section 125(3) of the Code before the Judicial Magistrate on April 18, 1981. The trial Magistrate issued notice to the petitioner but he remained absent and thereupon on May 18, 1981 the trial Magistrate issued distress warrant for attachment of the movables of the petitioner. The warrant was returned unserved with an endorsement that the petitioner has no property whatsoever. Thereupon on July 10, 1981, the Magistrate issued him a notice to show cause why he should not be detained in prison. The petitioner replied by Exh. 7, that he has no property whatsoever and he is unable to pay the amount of maintenance. The Magistrate thereupon held that he was left with no alternative but to send the petitioner to the jail and accordingly sentenced him to suffer simple imprisonment for a term of one month or until payment of the amount.

(3.) Respondent Nos. 1 to 3 carried a criminal revision before the Sessions Court, Dhule claiming that the sentence awarded by the Magistrate should be enhanced. The Sessions Judge, by his judgement dated December 9, 1981 modified the order passed by the Magistrate and directed that the petitioner should be detained in jail for a period of one month in respect of default of each month and directed the trial Court to issue necessary warrant. The order of detention passed by the two courts below is under challenge.