Bombay High Court
Rajesh Bhiwaji Nande vs State Of Maharashtra And Ors. on 23 February, 2005
Equivalent citations: 2005(2)MHLJ980
Author: S.T. Kharche
Bench: S.T. Kharche
JUDGMENT S.T. Kharche, J.
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 v. Family Court, Gorakhpur, 2000 Cri.L.J. 3893 and also on the decision of the Supreme Court in the case of Shahada Khatoon v. Amjad Ali, 1999(3) Mh.L.J. 290.
4. Mrs. Anjali Joshi, the learned counsel for the wife and children contended that the learned Magistrate was perfectly justified in rejecting the application filed by the husband because in exercise of the powers in Sub-section (3) of Section 125 of the Code, the husband was required to suffer the imprisonment for each month's default. She contended that the decision of the Allahabad High Court and the Supreme Court on which reliance is placed is not applicable to the facts and circumstances of the present case because it is not in dispute that the wife had filed applications before the Magistrate from time to time and sought relief of recovery of the maintenance allowance which remained unpaid. Thus, according to her no case has been made out for interference into the impugned order passed by the learned Additional Sessions Judge.
5. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is necessary to reproduce Sub-section (3) of Section 125 of the Code;
"125. Order for maintenance of wives, children and parents. -
(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 warrants 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;
PROVIDED FURTHER that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any ground of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation : If a husband has contracted marriage with another woman or keeps a mistress, if shall be considered to be just ground for his wife's refusal to live with him.
6. In Dilip Kumar s/o Kirtmukh v. Family Court, Gorakhpur and Ors., 2000 Cri.L.J. 3893 the Allahabad High Court has observed that; "A person who fails to make payment of maintenance amount can be kept under confinement for each month's default and the confinement can be only for a period of one month. The subsequent part "until payment if sooner made" further clarifies the situation to the extent that such a husband can be confined to a period of one month even if the default is of more than a month and he can be allowed to come out of jail if the payment is made earlier at any point of time within this period. This very clearly indicates that if the payment is made within this period on any date his confinement will come to an end. In one stroke no composite confinement can be directed by the Court. This power can be exercised only after a warrant for recovery of the unpaid maintenance allowance is issued by the Court. This warrant is to be executed like any warrant of recovery of fine. This fine can be recovered like any land revenue arrears. Unless that exercise is first adhered to this power of confinement to jail for his failure cannot be resorted to by any Court."
7. In Shahada Khatoon and Ors. v. Amjad Ali and Ors., 1999(3) Mh.L.J. 290 the Hon'ble Supreme Court has laid down the ratio that, "the language of Section 125(3) of the Code of Criminal Procedure is quite clear and it circumscribes 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. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month."
8. There cannot be any quarrel with the ratio laid down by the Supreme Court in the case of Shahda Khatoon. What reflects in the present case in that the wife had instituted recovery proceedings bearing Misc. Criminal Application No. 42/2000 in which the warrant for recovery of the maintenance amount was issued on 18-6-2001. The arrears of maintenance were for the period 25-9-1996 to 25-10-2000, i.e. for 4 years and one month. On 16-7-2001 again the application (Exh. 17), on 14-8-2001 application (Exh. 20) and on 12-9-2001 the application (Exh. 21) were filed by the wife from time to time and upon these applications, the husband was directed to suffer imprisonment for one month. Thus, this is not the case wherein the Magistrate has simply continued the detention of the husband in jail without asking for the said relief by the wife. The wife had filed applications from time to time for recovery of the maintenance amount which remained unpaid and, therefore, the Magistrate was perfectly justified in directing that the husband shall suffer imprisonment of one month at each time as it is not in dispute that the arrears of maintenance were for the period more than four years. In such circumstances, no fault could be found with the impugned order passed by the learned Additional Sessions Judge and this Court is of the considered view that no case has been made out for interference as there is nothing on record to show that the impugned order has resulted into the miscarriage of justice. Consequently this criminal application stands dismissed.