JITENDER Vs. DAYAWANTI

JUDGEMENT

(1.) Two execution applications for recovery of arrears of maintenance allowance were pending before the District Judge (Family Court). Execution Application No. 8 of 2010 was filed on 4.9.2010 and second Execution Application No. 34 of 2013 was filed on 27.2.2013. In the first execution, arrears of maintenance were claimed for the period from 2.6.2009 to 31.8.2010 amounting to Rs. 22,500/- and in the second execution, the arrears of maintenance for the period from 31.8.2010 to 5.2.2013, amounting to Rs. 45,000/- were due. Order for maintenance was passed by the learned Additional Chief Judicial Magistrate, Sonepat, fixing the maintenance @ Rs. 1500/- per month from the date of filing of the application. On establishment of the Family Court in District Sonepat, both the executions were disposed of by the Executing Court by a common order on 26.3.2013, sentencing the petitioner to total imprisonment for 12 months for the entire period which has been impugned in the instant petition.

(2.) Learned counsel for the petitioner contended that marriage of the parties was solemnized on 4.12.1998 and it was stated in the grounds of revision that respondent was already married with one Rambir S/o Chand Ram resident of Holambi, Delhi and marriage between the parties was thus void and so the respondent had no right to claim maintenance under Section 125 Cr.P.C. On these allegations, a criminal complaint was also filed against the respondent-wife which was sent by the Magistrate for investigation. The police submitted report in the said complaint which was fixed for hearing on 10.5.2013. These questions, however, cannot be gone into in the instant petition because the order of maintenance awarded by the Magistrate was not challenged by way of revision. The fact remains that the parties lived together as husband wife for many years.

(3.) Faced with the above situation the only grouse of the petitioner in the instant petition was confined to interpretatin of subsection (3) of Section 125 Cr.P.C which says that the defaulter cannot be sent to jail for the period for exceeding one month at a time or until the payment if sooner made. This contention is based on the judgment of the Apex Court in Shahada Khatoon and others Vs. Amjad Ali and others, 1999 5 SCC 672.