RAJESH BHIWAJI NANDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By invoking the jurisdiction of this Court under section 482 of the Code of Criminal Procedure (for short, the Code) , the petitioner-husband has challenged the order dated 5-12-2001 passed by the learned Additional Sessions Judge in Criminal Revision No. 92/01, whereby the revision has been dismissed and the order dated 12-9-2001 passed by the learned magistrate below Exh. 23 in Misc. Criminal Application No. 42/2000, filed by the husband in recovery proceedings under section 125 (3) of the Code seeking the relief that he be released from jail, was rejected.

(2.) Brief facts are required to be stated as under : the respondent-wife had filed Misc. Criminal Application 42/1996 under section 125 of the Code claiming maintenance for herself and her two minor children. The learned Magistrate allowed the said application on 8-11-2000 and granted maintenance @ Rs. 600/- to the wife and Rs. 300/- per month each to two children, with costs. The amount of maintenance remained unpaid for a longer period and, therefore, the wife had instituted recovery proceedings which was numbered as Misc. Criminal Application No. 42/2000. The learned Magistrate issued the warrant of arrest and distress warrant against the husband by passing order dated 18-6-2001 and on production of the husband before him, he was sentenced to undergo imprisonment for one month. The total arrears of maintenance were for the period 25-9-1996 to 25-10-2000 i. e. for the period of 4 years and 1 month. The payment remained unpaid and, therefore, the wife again submitted application (Exh. 16) on 16-7-2001 on which the husband was again sent to jail for one month. Thereafter the wife again filed application (Exh. 20) on which the learned Magistrate passed the order on 14-8-2001 directing that the husband shall suffer imprisonment for one month. Thereafter, the wife again filed application (Exh. 21) on which the learned Magistrate passed the order on 12-9- 2001 and again directed that the husband shall suffer imprisonment for one month. The husband also filed application (Exh. 23) and sought the relief that he should be released from the jail as the learned Magistrate has committed an error in making interpretation of sub-section (3) of section 125 of the Code. The learned Magistrate rejected this application and thereafter the husband had challenged the said order in criminal revision which came to be dismissed by the learned Additional Sessions Judge. This order is under challenge in this revision.

(3.) Mr. Mohta, the learned counsel for the husband contended that simple reading of the provisions of sub-section (3) of section 125 of the Code, it would be obvious that 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. He contended that, therefore, the Magistrate has committed an error in rejecting the application filed by the husband for his release from jail and the said order has been erroneously confirmed by the learned Additional Sessions Judge and these orders cannot be sustained in law. In support of these contentions, he relied on the decision of the Allahabad High Court in the case of Dilip Kumar vs. Family court, Gorakhpur, 2000 Cri. L. J. 3893 and also on the decision of the Supreme court in the case of Shahada Khatoon vs. Amjad Ali, 1999 (3) Mh. L. J. 290.