GORAKSHNATH KHANDU BAGAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Criminal Revision application arises from the order passed in PER no. 444/2004, which was filed by the respondent wife for recovery of arrears of maintenance for a period of 16 months at the rate of Rs. 1,500/- per month for Respondent no. 1 and her daughter Kum. Darshana, in addition to the costs. This PER No. 444/2004 was filed by respondent for recovery of maintenance allowance after the Petition No. 27/ 2003 filed under section 125 of Cr. P. C. was disposed of by the Family Court No. 1, Pune, fixing the maintenance at the rate of Rs. 1,500/ - per month to the wife and minor daughter darshana. Since there were arrears amounting to Rs. 24,000/- for a period of 16 months, the warrant was issued to the applicant. The applicant expressed inability to pay any amount and showed willingness to suffer imprisonment. There was no other alternative left for the Family Court No. 1, Pune, but to pass an order of sentence. The Family Court has also found that, to justify the non-payment, there is no plausible cause placed on record by husband and since the passing of the order u/s. 125, the respondent wife and her daughter have not received any benefits of the said order, the Family Court, ordered the applicant to undergo imprisonment for a period of 12 months, for committing default in paying arrears of 16 months and committed the applicant to jail. The warrant was accordingly directed to be implemented. The said order dated 22-07-2004 passed in PER No. 444/2004 is under challenge before this court.

(2.) The only challenge which has been raised by the learned counsel Mrs. Smita R. Kadu-Gawai for the Applicant, is that under section 125 (3) of the Cr. P. C. , the Magistrate has powers to order imprisonment for default in payment of maintenance but the said powers, according to the learned counsel, are limited to only one month and therefore, the imprisonment awarded for a period of 12 months by the family Court is not justifiable and therefore, the impugned order shall be set aside. In support of the contentions raised by the learned counsel for the applicant, the learned counsel has relied upon two judgments namely, 1999 (3) mh. L. J. Pg. 290 in the matter of Shahada khatoon and Ors. Vs. Amjad Ali and Ors. and secondly, I (2004) DMC 693 (DB) of the andhra Pradesh High Court in the matter of abdul Gafaoor @ Ashan Vs. Hameema khatoon and Ors.

(3.) So far as the enforcement of the orders passed under section 125 of Cr. P. C. is concerned, the provisions of sub-section (3) of Section 125 and Section 128 are relevant. For the decision of this matter, section 125 (3) is the only relevant provision which provides for sentencing a person, committing default in payment of maintenance, to imprisonment. The relevant sub-section of the said section reads thus :-" (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 :"the Criminal Procedure Code of 1898 also contains the Chapter 36 about the Maintenance of wives and children and Section 488 sub-section (3) provides for enforcement of the order. The relevant provision of section 488 (3) of the 1898 Code is as under :-" (1). . . . . (2). . . . . (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 manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance 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 further, that no warrant shall be issued for the recovery of any amount due under this section unless application bemade to the Court to levy such amount within a period of one year from the date or, which it became due. "from the plain reading of these two provisions, it will be crystal clear that the provisions of section 125 (3) of the Criminal Procedure Code of 1973 and section 488 (3) of Criminal procedure Code, 1898 are pan materia same. Both these sections thus contemplate that if a person ordered to pay mainteance fails, without sufficient cause, to comply with the order, for every breach of the order, the Magistrate may issue a warrant for levying the amount due and may sentence such person, for the whole or any part of each month's allowance 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. Thus, for a default of whole or any part of the maintenance allowance remained unpaid, the imprisonment for a term extending upto one month or until payment, which ever is earlier, can be imposed by the Magistrate. In view of the proviso, the wives or children who are eligible for recovery of any amount of maintenance, may file such an application within a period of one year from the date on which it has become due. Thus in one application, for enforcement of the order under section 125, a maximum due amount can be claimed is of the 12 months and if the priviso is read conjointly with the main sub-section (3) , it becomes clear that for default of the whole or any part of each month's maintenance allowance, a sentence of one month's imprisonment can be imposed by the Magistrate and thereby, the total imprisonment may extend upto a period of 12 months. The question as to whether the imprisonment for a period, more than one month can be granted or not was considered by this court in the matter of Karson Ramji chawda Vs. The State of Bombay, reported in AIR 1958 BOMBAY 99. It is a full bench judgment. The relevant observations in the said judgment read thus :"therefore, if we read the provision with regard to the power of the Magistrate to sentence the applicant independently of the power to issue the warrant, it is clear that the power to sentence is for the whole or any part of each month's allowance 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. Now these words clearly lay down the power of the Magistrate. The power of the Magistrate is in respect of whole or any part of each month's allowance remaining unpaid to sentence the applicant for a term not exceeding one month. "