Bombay High Court
Shri Sanjay Sakharam Dongare vs Sou. Jyoti Sanjay Dongare @ Jyoti ... on 25 February, 2003
Equivalent citations: 2003(2)ALD(CRI)79, 2003BOMCR(CRI)~, 2003(4)MHLJ319
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. Rule. Rule returnable forthwith by consent. Heard both sides for final disposal, by consent.
2. By this Petition, under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, the Petitioner essentially seeks to challenge three sets of orders. The first set of order is determining the maintenance amount, to be paid by the Petitioner to the Respondent 1 to 3 dated 26th November, 1997. That order has been confirmed by the Revisional Court on 21st November, 1998. Subsequently, Respondent 1 to 3 filed application for enhancement in terms of the amended provisions of the Code, as applicable to the State of Maharashtra. The Trial Court has accepted that request and enhanced the maintenance amount by order dated 17th May, 2000. This is the second set of order challenged in the present Writ Petition. The third set of orders challenged in this Petition are, orders passed in derivative proceedings due to non-compliance of the maintenance orders passed by the Magistrate. All the three orders are passed on 29th May, 2000, but pertaining to defaults relating to different periods. In two orders, the punishment imposed is of twelve months imprisonment and in third order, punishment imposed is ten months imprisonment. Present Petition has been filed sometime in March, 2001.
3. In is obvious that the Petitioner has approached this Court only after the drastic order that was required to be passed by the Magistrate to ensure compliance of the earlier maintenance orders passed on two occasions. That happened on 29th May, 2000. Nonetheless, the present Petition has been filed only in March, 2001. Assuming that the time taken by the Petitioner in filing the present Petition against the order dated 29th May, 2000 can be excused in the interest of justice, however, there is no tangible reason whatsoever available on record so as to give benefit to the Petitioner to challenge the maintenance order passed by the Magistrate, which relates back to 26th November, 1997 and the enhancement order dated 17th May, 2000. The only excuse given by the Petitioner can be discerned from paragraph 5 on page 21, which reads thus:
"The Petitioner states that there is some delay in filing the present petition as regards certain orders and the Petitioner has already explained hereinabove the circumstances in which the delay in filing the present petition took place. The Petitioner states that due to paucity of funds he could not earlier file the present petition. The Petitioner states that he has borrowed some amount from his friends for the purpose of filing this petition. The Petitioner states that he has got very good case on merit of the matter. The Petitioner states that in view of the facts and circumstances mentioned hereinabove the delay in filing the present petition is required to be condoned in the interest of justice and kindness."
4. To my mind, it is not possible to accept the vague assertion made by the Petitioner for the delay in challenging the maintenance order passed by the Magistrate on 26th November, 1997. To put it differently, the present Petition is barred by latches and unexplained delay in challenging the order dated 26th November, 1997, which came to be confirmed by the Revisional Court on 21st November, 1998; whereas, the present Petition has been filed in March, 2001. Needless to observe that the effect of non-suiting the Petitioner with regard to challenge regarding maintenance order dated 26th November, 1997 is that the finding as recorded by the Magistrate regarding the factum of the lawful marriage between the parties and the entitlement of the Respondents 1 to 3 for maintenance becomes final.
5. In that case, even if the Petitioner was to be permitted to assail the order passed by the Magistrate dated May 17, 2000, enhancing the maintenance amount, the scope of argument will be limited to the justness of the enhancement granted by the Magistrate. On perusing the order passed by the Magistrate, I have no doubt in my mind that there is no infirmity either in the approach or the conclusion reached by the Magistrate. Learned Counsel, however, contends that there is no investigation into the fact of income of the Petitioner. That submission clearly overlooks the finding of fact as returned by the Magistrate in the order dated 26th November, 1997, which has been allowed to become final. In paragraph 20 of that order, the Magistrate has dealt with relevant aspects to hold that the Petitioner was having sufficient income so as to pay the maintenance amount as determined by the Magistrate to be paid to the Respondents 1 to 3. Once that position goes unchallenged, and which cannot be re-opened in the present Writ Petition, for the reasons aforesaid, it necessarily follows that, the order passed by the Magistrate dated 17th May, 2000 enhancing the maintenance amount from Rs. 350/- to only Rs. 500/- per month, to be paid to Respondent No. 1 and from Rs. 250/- and Rs. 350/- to Rs. 400/- to be paid to Respondent 2 and 3 respectively, that enhancement ordered by the Magistrate is very minimum and reasonable one. That needs no interference in exercise of writ jurisdiction.
6. That takes me to the last grievance which alone needs to be considered in the present Petition relating to the inappropriateness of the order passed by the Magistrate awarding sentence of imprisonment of 12 months in two orders for different periods and then months in the third order for another period. All these three orders are passed on the same day i.e. on 29th May, 2000. Counsel for the Petitioner has rightly placed reliance on the decision of the Apex Court Shahada Khatoon and Ors. v. Amjad Ali and Ors. as well as another decision of the Allahabad High Court reported in 2000 Cri.L.J. 3893 Dilip Kumar v. Family Court, Gorakhpur. It is contended that having regard to the plain language of Section 125(3) of Criminal Procedure Code, the Magistrate was empowered to impose sentence only for a period of one month at a given point of time and not beyond one month. There is substance in this submission, for this proposition has been accepted by the Apex Court in the aforesaid decision. In the case of Shahada Khatoon (Supra), the Apex Court has observed that the power of the Magistrate cannot be enlarge so as to award imprisonment exceeding one month period and the only remedy would be that after expiry of one month, for breach of non-compliance of the order of the Magistrate, the wife can approach Magistrate again for the same relief. In other words, Magistrate cannot award punishment for a period of twelve months for different periods at one time. Understood thus, the orders passed by the Magistrate on 29th May, 2000, which has been confirmed by the Sessions Court on 20th October, 2000, would stand modified in terms of the decision of the Apex Court. In other words, the Petitioner shall suffer imprisonment in terms of order dated 29th May, 2000 for a period of one month, and on expiry of that period, if the Petitioner fails to comply with the maintenance order, it will be open to the Respondents 1 to 3 to approach the Magistrate for similar relief.
7. Mr. Jamdar points out that the Petitioner has already suffered imprisonment of total one year and three months. As observed earlier, if the Petitioner has not complied with the order of the Magistrate, it will be open to the Respondents 1 to 3 to approach the Magistrate for similar relief in terms of the decision of the Apex Court, referred to above.
8. Petition partly allowed in the above terms.
9. Issuance of certified copy is expedited.