Rajasthan High Court - Jaipur
Kashmir Singh vs Kartar Kaur on 11 August, 1987
Equivalent citations: 1988(1)WLN164
JUDGMENT M.C. Jain, J.
1. This petition under Section 482 Cr.PC is directed against the order of the learned Additional Sessions Judge, Sriganganagar dated March 28, 1979 whereby the learned Additional Sessions Judge upheld the order passed by the learned Judicial Magistrate, 1st Class, Ganganagar, dated May 4, 1978. The learned Magistrate passed the order in proceedings under Section 125(3) Cr.PC 11 months amount of maintenance at rate of Rs. 60/- was due from the husband present-petitioner. The learned Magistrate expressed that the husband can be punished to the extent of 11 months simple imprisonment. Thereafter, he stated that considering the circumstances of the case, he prescribed the punishment to the extent of 6 months, simple imprisonment. The warrant of arrest as ordered to be issued.
2. The only question that arises for considerarion in the present petition is, as to whether the learned Magistrate was justified in passing the impugned order whereby sending the husband to six months simple imrisonment in connection with the enforcement of the maintenance order. For consideration of the above question I extract Sub-section (3) of Section 125 Cr.PC;
(3) It 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 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 warrant, shall be issued for the recovery of and amounnt 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 grounds of refusal stated by her and may make an order under this Section not with standing 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, it shall be considered to be just ground for his wife's refusal to live with him.
3. The relevant part of the old Provision contained in Section 488(3) Cr.PC is also produced below:
Enforcement of order (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 herein before provided for levying fines, and may sentence such person, for the whole or any part of each month 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....
4. For the purpose of this petition the main provision of Sub-section (3) is material. The following words occurring in Sub-section need to be interpreted "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 extent to one month or until payment if sooner made."
5. On analysing the main provision contained in Sub-section (3) it would appear that if compliance of the order has not been made without sufficient cause then the Magistrate is empowered to issue a warrant for levying the amount due in the manner provided for levying fines for every breach of the order and he is also empowered to sentence such persons to imprisonment for each month's allowance remains unpaid after execution of the warrant either wholly or in part and for such each month's allowance whether wholly due or partly due, the Magistrate may sentence such person to imprisonment for a term which may extend to one month or if payment is made earlier, then to the extent of the date when payment is made. The term of imprisonment is one month for the whole or any part of each month's allowance remaining unpaid after execution of the warrant. If warrant remains unexecuted it does not mean that order of imprisonment cannot be passed. Sub-section (3) confers both the powers on the Magistrate. He may issue warrant for levying the amount due and if warrant remains unexecuted pass an order for imprisonment to the extent as provided in Sub-section (3). The maximum sentence that can be ordered under Sub-section (3) is one month for each month's allowance due or one month for a part of each month's allowance. The maximum to the extent of one month is not provided under this provision. The maximum one month is with reference to each month's or part of each month's allowance. The term of imprisonment has relation with the amount due in relation to a particular month whether the whole of the month's allowance is due or part of the month's allowance is due. In that situation the term of imprisonment may extend to one month. The question had come up for consideration before the various courts in India.
6. Reference may be made to a Full Bench decision of Allahabad High Court in Emperor v. Beni . Provision of Section 488(3) Cr.PC 1898 analagous to Section 125(3) Cr.PC 1973 came up for consideration. It was observed in this case as under:
We are satisfied after a consideration of the terms of the Section that the intention of the Legislature was to empower the Magistrate after execution of one warrant only to sentence a person, who has defaulted in the payment of maintenance ordered under Section 488, Criminal PC to imprisonment for a period of one month in respect of each month's default that it does not enjoin that there should be a separate warrant in respect of each term of imprisonment for one month. In other words, where appears have been allowed to accummulate, the court can issue one warrant and impose a cumulative sentence of imprisonment. We would observe that the decision in 20 Mad. has been followed in a number of other cases in 25 Cal. 291; AIR 1935 Lah. 758 and 50 IC 847. We would remark further that the warrant of imprisonment under Section 488 Criminal PC, the form of which is to be found in Section 5 No. XL contemplate a sentence of more than one month's rigorous imprisonment in the case of a person who has defaulted in payment for more than one month. The warrant runs and whereas it has been further proved that the said (name) in wilful disregard of the said order has failed to pay rupees being the amount of the allowance for the month (or months) of and thereupon an order as made adjudging him to undergo simple (or rigorous) imprisonment in the said jail for the period of....
We, therefore, hold that in the case of a default in payment directed by an order under Section 488 Criminal PC the Magistrate seized with the case may issue one warrant and thereafter pass a sentence of imprisonment for one month in respect of each month or part of a month for which there has been default in payment.
7. In Ma Tin Tin v. Maung Aye AIR 1941 Rangoon 135 the Division Pench of the Rangoon High Court observed as under:
When a wife applies to enforce a maintenance order and in a single application includes arrears which cover several months, the Magistrate has power to sentence the defaulter to more than one month's imprisonment He may sentence the defaulter to one month's imprisonment for each full month's arrears of maintenance and to a further month for any broken period over and above that completed number of month's arrears which falls short of another complete month;
8. In Karson Ramji Chawda v. The State of Bombay AIR 1958 Bombay 99 (V 45, C 29), (Full Bench) it has observed as under:
Therefore, this Sub-section confers upon the Magistrate two independent powers; one to issue a warrant which has to be executed in the manner laid down in the Sub-section and the other to sentence the person also in the manner laid down in the Sub-section. The fallacy underlying Mr. Kotwal's argument is that the sentence follows upon the issue of a warrant. That is not tie section.
The power of the Magistrate to sentence the applicant is not dependent upon the issue of the warrant, or in the other words the issue of the warrant is not a condition precedent to the jurisdiction of the Magistrate to sentence the applicant. 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 lo 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 application for the term not exceeding one month.
9. In Kantappa v. Sharnanma AIR 1967 Mys. 81(V 54, C 23) relying an the Full Bench decision of Allahabad High Court and Bombay High Court referred to supra, it was held that the maximum imprisonment can be one month for each month. The Magistrate has to compute term of imprisonment with reference to each month's default and pass a cumulative sentence.
10. The Division Bench of the Calcutta High Court in Modderi Bin v. Sukhdee Bin also had an occasion to consider this question. Justice P.B. Mukharji was he then as speaking for the court observed as under:
The maximum punishment of one month povided under Section 488 (3) of the Code is relatable to a period of the arrear for one month. In other words, default of one month is punishable by one month's imprionment and no more. If the default is more than one month then the imprisonment can be for as many months of default subject to a maximum of 12 months Since the second Proviso to Section 488(3) provides that no warrant can be issued for recovery of amount due unless an application has been made to the Court within one year from the date on which it became due, the arrears can be accumulated only for one year and no more. In such case the Magistrate can give at most 12 month's imprisonment and no more. Thus the Magistrate's order sentencing a party to 6 month's imprisonment for 9 month's default in maintenance is not bad in law.
11. It was also held that Section 488(3) does not restrict sentence to simple imprisonment. Sentence to rigorous imprisonment is not bad in law.
12. Same view has been taken in Antha v. Lakshmi Cr. Law Journal 1969-572 (Vol.75 C.N. 158.) it was observed that "reading Sub-section (3) of Section 488 as a whole it cannot be said that power to pass an order of sentence can be exercised only if the warrant of attachment and sale of movables proves abortive. The two powers are independent. It was held that since the wife had admitted that husband did not possess any property the Magistrate did not err in ordering sentence of imprisonment.
13. There are two more decisions, one of the Andhra Pradesh High Court and the other of the Gujarat High Court. In Bangaiah v. Rukmini Bai (1972 (1) Andhra Weekly Reporter 361), it was held that "the contention that whatever the arrears the maximum period of imprisonment that can be ordered is only one month is not tenable."
14. In Venkar Bhana Rama v. Rai Ladu 1973 Cr.LJ 788 Seth, J. of the Gujarat High Court it was observed as under:
The principle laid down by Section 488(3) is that the Magistrate has the jurisdiction to award imprisonment to a defaulting husband in respect of default in payment of each month's arrears. As long as that principle is not violated, the Magistrate has the power to deal with a consolidated application for recovery of arrears for more than one month in such reasonable and just manner as he thinks fit. Hence a Magistrate can pass independent orders one after another in respect of each month's arrears on a single application for recovery of arrears of maintenance for more than one month.
15. Thus it would appear well settled that the Magistrate is empowered to exercise both the powers to the exclusion of each other as well as simultaneously and the maximum sentence that can be ordered is one month for each month's default or default for any part of each month. So far as present case is concerned the warrant of attachment was issued but was returned with a report that the husband had no property so on application, the learned Magistrate has ordered imprisonment only for six months although he could have ordered imprisonment to the extent of 11 months as 11 months maintenance was due. There does not appear any illegality or infirmity in the order of the learned Magistrate and in my opinion, the same has been rightly upheld by the learned Additional Sessions Judge, so the impugned orders call for no interference.
16. This petition, in my opinion, has, therefore no force so is it hereby dismissed.