TAPAN CHATTERJEE Vs. SHILA CHATTERJEE

JUDGEMENT

(1.) HEARD Mr. Joymalya Bagchi, Advocate appearing with Ms. Sreyashee Biswas, Advocate for the petitioner as well as Mr. Pratick Kumar Chatterjee, Advocate appearing for the opposite party no. 1 and Mr. Sobhendu Sekhar Roy for the State. Perused the Lower Court Records. Considered their respective submissions and case laws relied upon by them. While Mr. Bagchi, relied on the decision relating to the case of Shahada Khatoon and Ors. Vs. Amjad Ali and Ors. , reported in 1999 Cri. L. J. 5060, Mr. Pratik Kumar Chatterjee, relied on the case laws relied upon him in the case of Narayanan Vs. State of Kerala, reported in AIR 2008 (NOC) 1578 (Ker.) and another in the case of Smt. Kuldip Kaur Vs. Surinder Singh and Anr. , reported in 1989 Cri. L. J. 794 SC.

(2.) THE present petitioner who happened to be the husband of the opposite party herein was directed to pay a maintenance @ Rs. 1,500/- per month to the wife/opposite party in connection with a proceeding under Section 125 of the Code of Criminal Procedure. Since the petitioner did not comply with the aforesaid order of payment of maintenance and a sum of Rs. 39,000/- has been accumulated as arrear maintenance, the wife/opposite party filed an execution case in the court below for enforcement of the order of maintenance. When the learned court below directed the petitioner to liquidate the said dues in 13 equal instalments to be paid along with the current maintenance. The petitioner challenged the said order in C. R. R. No. 2191 of 2007 before this Hon'ble High Court, when this Hon'ble Court permitted the petitioner to liquidate the said arrear amount in 25 equal monthly instalments instead of 13 monthly equal instalments. In spite thereof the petitioner did not pay any of the said instalments. It appears that the learned court below on several occasions granted time to the petitioner for making payment of the arrear amount in instalments as directed by this Hon'ble Court but no payment was made. Subsequently, on March 6, 2008 the petitioner was produced before the court while he was in custody in connection with another execution proceeding arising out of the self-same maintenance case. When the learned court below sentenced him to suffer imprisonment till 4th of April, 2008 or till the payment is made. On april 4, 2008 the petitioner was produced from custody and as he did not pay the arrear maintenance he was again remanded to jail custody till 2nd of May, 2008 or sooner the payment is made. Then again on 2nd of May, 2008 he was remanded to custody till May 30, 2008 or till payment is made. In the meantime challenging the said order the instant criminal revision has been moved.

(3.) IN the case of Shahada Khatoon and Ors. Vs. Amjad Ali and Ors. (supra) the Apex Court held as follows; firstly, in terms of the provisions of Section 125 (3) of the Code of Criminal Procedure a Magistrate is empowered to impose imprisonment for a term which may extend to one month or until payment if sooner made. Secondly, the power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month, for breach of any order of payment of maintenance the wife can again approach the Magistrate for similar relief. Thirdly, no Magistrate is empowered to impose sentence for a period of more than one month.