Judgment Reserved On: 04.05.2026 vs Smt. Reeta Devi And Others on 14 May, 2026

[Cites 15, Cited by 0]

Himachal Pradesh High Court

Judgment Reserved On: 04.05.2026 vs Smt. Reeta Devi And Others on 14 May, 2026

Bench: Sandeep Sharma

2026:HHC:17096 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.1036 of 2024 Judgment Reserved on: 04.05.2026 .

Date of Decision: 14.05.2026 _______________________________________________________ Ram Lal .......Petitioner Versus Smt. Reeta Devi and others ... Respondents _______________________________________________________ of Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 Yes.


    For the Petitioner
                            rt  :      Mr. Virender Singh Kanwar, Advocate.

For the Respondents: Mr. Hamender Singh Chandel, Advocate, for respondent Nos. 1 to 3.

Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocate Generals with Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General, for the respondent-State. _______________________________________________________ Sandeep Sharma, Judge(oral):

Instant petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, lays challenge to orders dated 21.09.2024 and 05.10.2024, passed by learned Judicial Magistrate, First Class, Court No.5, Shimla, District Shimla, Himachal Pradesh, in case No.128 Cr.P.C/49932 of 2019 (CNR No.HPSH110499552019) and case No.128 Cr.P.C/7/2019, on the ground that Court below has passed aforesaid orders beyond its jurisdiction and has illegally sent 1 Whether the reporters of the local papers may be allowed to see the judgment?

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2026:HHC:17096 the petitioner to civil imprisonment for more than one month continuously.

.

2. Quintessential facts, as emerge from the pleadings as well as other material adduced on record by the respective parties, are that respondents No.1 to 3 (wife and minor daughters of the petitioner) filed an application under Section 125(3) Cr.P.C seeking of payment of arrears of maintenance, amounting to Rs. 60,000/- i.e. Rs. 5000/- per month from June 2018 to 2019. Since factum with regard to arrears of maintenance never came to be disputed at the rt behest of the petitioner, Court below, after recording the statement of the petitioner, granted him an opportunity to deposit the maintenance amount, specifically clarifying in the order that failing which, he shall render himself liable for punishment in accordance with law. However, fact remains that petitioner failed to deposit sum of Rs. 60,000/-, whereafter learned Judicial Magistrate, First Class sentenced him to civil imprisonment for a period of 30 days on account of non-payment of arrears pertaining to the month of June, 2018, with a direction that he shall be released forthwith upon payment of the remaining arrears of maintenance i.e., Rs. 60,000/-. Even after expiry of 30 days, petitioner failed to deposit the aforesaid amount, as a result thereof, he was further sentenced to civil imprisonment for a period of 15 days on account of non-payment of arrears of maintenance for the month of July, 2018. Yet again, upon failure to deposit the arrears amount, ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 3 2026:HHC:17096 petitioner was sentenced to civil imprisonment for a further period of 25 days for non-payment of arrears of maintenance for month of .

August, 2018. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein to quash and set-aside aforesaid orders.

3. In nutshell, case of the petitioner, as has been of highlighted in the grounds of the petition and further canvassed by learned counsel for the petitioner, is that learned Court below has rt acted beyond its jurisdiction in sentencing the petitioner to civil imprisonment for more than one month continuously. While inviting attention of this Court to provisions contained under Section 125 (3) Cr.P.C, learned counsel for the petitioner argued that learned Magistrate could not have sentenced the petitioner to civil imprisonment for a period exceeding one month. To substantiate his aforesaid plea, he placed reliance upon the judgment passed by Hon'ble Apex Court in Shahada Khatoon and others vs. Amjad Ali and others,(1999) 5 SCC 672. Besides above, learned counsel for the petitioner further submitted that otherwise also, no fruitful purpose would be served by keeping the petitioner behind the bars, as he is a labourer and would only be able to pay the arrears of maintenance if he is permitted to work. He further contended that petitioner had previously paid arrears of maintenance amounting to Rs. 1, 30,000/-

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2026:HHC:17096 by selling his land, evidencing that he has all intention to pay the remaining maintenance amount.

4. To the contrary, Mr. Hamender Singh Chandel, learned counsel representing respondents No.1 to 3, while supporting the impugned orders, vehemently argued that no illegality can be said to have been committed by learned Court below while passing the of impugned orders, because bare perusal of Section 125(3) Cr.P.C clearly reveals that a person responsible for non-payment /deposit of arrears of maintenance is liable to be sentenced to civil imprisonment rt for a period of 30 days for each month's default. He further submitted that bare perusal of the orders impugned in the instant proceedings clearly reveals that petitioner has been sent to civil imprisonment for each month's maintenance allowance remaining unpaid. He further submitted that since, at first instance, petitioner failed to deposit Rs.

60,000/-, ordered to be paid by learned Court below on account of arrears of maintenance, Court below had no option, but to again send him to civil imprisonment on account of his failure to clear the arrears amount.

5. While making this Court peruse judgment rendered by Hon'ble Apex Court in Shahada Khatoon case (supra), learned counsel representing respondent Nos. 1 to 3 attempted to argue that the same is not applicable in the present facts and circumstances of the case, rather, is being misinterpreted by the petitioner. While ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 5 2026:HHC:17096 referring to various judgments, which shall be taken note of in the later part of the judgment, learned counsel representing respondents .

No.1 to 3 submitted that aforesaid judgment rendered by Hon'ble Apex Court in Shahada Khatoon case (supra) came to be elaborated/interpreted by various Courts including the Hon'ble Apex Court. While referring to aforesaid judgments, learned counsel of representing respondents No.1 to 3 submitted that, in exercise of powers under Section 125(3) Cr.P.C, the Magistrate is empowered to sentence the defaulter for a term of upto one month for each month rt of default, meaning thereby it is open for the Magistrate to award sentence upto a maximum period of one month for each default committed by the person ordered to pay maintenance. He submitted that though Magistrate can entertain separate applications from the person entitled to receive such maintenance or even entertain a common application for several months of default and pass appropriate order thereupon, yet where arrears of maintenance pertain to more than one month, imprisonment exceeding the period of one month can also be imposed.

6. Having heard learned counsel representing the parties and perused the material adduced on record vis-à-vis reasoning assigned in the impugned orders passed by learned Court below, this Court finds no illegality or infirmity in the same. It is not in dispute that, at first instance, learned Court below had granted an opportunity ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 6 2026:HHC:17096 to the petitioner to deposit arrears to the tune of Rs. 60,000/-, failing which, he was liable to punishment as per the provisions of the Act.

Since petitioner failed to deposit sum of Rs. 60,000/-, learned Court below had no option, but to send him to civil imprisonment for a period of 30 days on account of non-payment of arrears of maintenance for the month of June, 2018, but with a direction that he shall be released of forthwith upon payment of remaining arrears of maintenance of Rs. 60,000/-. Since petitioner failed to pay aforesaid arrears within the stipulated period of 30 days, he was further sentenced to civil rt imprisonment for a period of 15 days for non-payment of arrears of maintenance for the month of July, 2018. However, as has been noticed hereinabove, the petitioner again failed to deposit the aforesaid amount and, consequently, he was further sentenced to civil imprisonment for a further period of 25 days for the month of August, 2018.

7. Though, it came to be vehemently argued at the behest of the petitioner that learned Court below failed to take note of the judgment passed by Hon'ble Apex Court in Shahada Khatoon & others vs. Amjad Ali & others (1999) SCC(Cri.) 1029, but having carefully perused aforesaid judgment passed by Hon'ble Apex Court, this Court is not persuaded to agree with learned counsel for the petitioner that in no circumstance, a person in arrears of maintenance could have been sentenced for more than 30 days, ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 7 2026:HHC:17096 especially when he was unable to clear the arrears. At this stage, it would be apt to take note of relevant para of the judgment passed in .

Shahada Khatoon case (supra), which reads as under:-

"The short question that arises for consideration is whether the learned Single Judge of the Patna High Court correctly interpreted sub-section (3) of Section 125 of Cr.P.C. by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned counsel for the appellants contends that the liability of the husband arising out of an order passed under Section 125 to make payment of maintenance is a continuing of one and on account of non-payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. We are unable to accept this contention of the learned counsel for the appellants. The language of sub-section (3) of Section 125 is rt 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. In that view of the matter the High crwp1778.17 Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. The appeal accordingly fails and is dismissed."

8. At this stage, it would also be apt to take note of the judgment passed by Hon'ble Apex Court in Smt. Kuldip Kaur vs. Surinder Singh and others, AIR 1989 SC 232, which reads as under:-

"6. A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a "mode of enforcement". It is not a "mode of satisfaction" of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 8 2026:HHC:17096 discharge. Be it also realised that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance "without sufficient cause" to comply with the order. It would indeed be strange to hold that a person who "without reasonable cause" refuses to comply with the .

order of the court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears.

Monthly allowance is paid in order to enable the wife and child to live by providing with the essential economic wherewithal. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to of enable them to live. Instead of providing them with the funds, no useful purpose would be served by sending the husband to jail. Sentencing to jail is the means for achieving the end of enforcing the order by recovering the amount of arrears. It is not a mode of discharging liability. The section does not say rt so. Parliament in its wisdom has not said so. Commonsense does not support such a construction. From where does the court draw inspiration for persuading itself that the liability arising under the order for maintenance would stand discharged upon an effort being made to recover it? The order for monthly allowance can be discharged only upon the monthly allowance being recovered. The liability cannot be taken to have been discharged by sending the person liable to pay the monthly allowance, to jail. At the cost of repetition it may be stated that it is only a mode or method of recovery and not a substitute for recovery. No other view is possible. That is the reason why we set aside the order under appeal and passed an order in the following terms:

"Heard both the sides.

The appeal is allowed. The order passed by the learned Magistrate as confirmed by the High Court in exercise of its revisional jurisdiction to the effect that the amount of monthly allowance payable under Section 125 of the Code of Criminal Procedure is wiped out and is not recoverable any more by reason of the fact that respondent No. 1, Surinder Singh, was sent to jail in exercise of the powers under Section 125 of the Code of Criminal Procedure is set . In our opinion, respondent No. 1, husband of appellant, is not absolved from his liability to pay the monthly allowance by reason of his undergoing a sentence of jail and the amount is still recoverable notwithstanding the fact that the respondent No. 1 husband who is liable to pay he monthly allowance has undergone a sentence of jail for failure to pay the same. Our reasons for reaching this conclusion will follow.

So far as the amount of monthly allowance awarded in this particular case is concerned, by consent of parties, we pass the following order in regard to future payments with effect from 15th August, 1986.

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2026:HHC:17096 We direct that Respondent No 1, Surinder Singh shall pay Rs.275 (Rs.200 for the wife and Rs 75 for the child) as and by way of maintenance to the appellant Smt Kuldip Kaur commencing from August 15, 1986. The amount of Rs 275 shall be paid by the 15th of every succeeding month. On failure to pay any monthly allowance .

for any month hereafter on the part of respondent No 1, Surinder Singh, the learned Metropolitan Magistrate shall issue a warrant for his arrest, cause him to be arrested and put in jail for his failure to comply with this Court's order and he shall not be released till he makes the payment. With regard to the arrears which have become due till August 15, 1986, learned counsel for the appellant states that having regard to the fact that respondent No 1, has agreed to the aforesaid consent order, the appellant will PG NO 769 not apply for the respondent being sent to jail under Section 125 of the Code of of Criminal Procedure but will reserve the liberty to realize the said amount (Rs 5090 plus the difference between the amount that became due and the amount actually paid under the interim order) under the law except by seeking an order for sending respondent No. 1 to jail.

rt The appeal will stand disposed of accordingly."

9. Having carefully perused judgment rendered by Hon'ble Apex Court in Shahada Khatoon case(supra) in its entirety, this Court is persuaded to agree with learned counsel for the respondents that Hon'ble Apex Court, while passing the aforesaid judgment, failed to take note of its earlier judgment passed in Kuldip Kaur case(supra), wherein order passed by learned Magistrate, as confirmed by the High Court in exercise of its revisional jurisdiction, to the effect that the amount of monthly allowance payable under Section 125 Cr.P.C stood wiped out and was no longer recoverable merely on account of husband(respondent No.1) having been sent to jail in exercise of powers under Section 125 Cr.P.C., came to be set aside. In the aforesaid judgment Hon'ble Apex Court categorically held that husband of the appellant is not absolved from his liability to pay the monthly allowance by reason of his having undergone a sentence of ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 10 2026:HHC:17096 imprisonment and the amount is still recoverable notwithstanding the fact that respondent No.1 husband, who was liable to pay the monthly .

allowance had undergone a sentence of jail on account of failure to pay the same.

10. In similar facts and circumstances, Hon'ble Apex Court in Shantha alias Ushadevi & others vs. B.G. Shivananjappa [2005 of SCC(Cri.)1089], held as under:-

"We are, therefore, of the view that in the peculiar circumstances of the case, the bar under Section 125(3) cannot be applied and the rt High Court has erred in reversing the order of Sessions Judge. It must be borne in mind that Section 125 Cr. P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under Section 125(1) is a continuing liability."

11. In the aforesaid judgment, Hon'ble Apex Court held that Section 125 Cr.P.C is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter and as such, it is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under Section 125(1) is a continuing liability. Though, in afore judgment, Hon'ble Apex Court had not taken note of its earlier judgments rendered in Smt. Kuldip Kaur (supra) and Shahada Khatoon & others (supra).

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12. In case tilted Poongodi & another vs. Thangavel, (2013) 10 SCC 618, Hon'ble Apex Court, while taking note of its .

earlier decisions rendered in Smt. Kuldip Kaur and Shahada Khatoon (supra), held as under:-

4. A reading of the order dated 21-4-2004 [Thangavel v. Poongodi, Criminal Revision No. 620 of 2003, order dated 21-4-2004 (Mad)] passed by the High Court would go to show that the proviso to of Section 125(3) CrPC has been construed by the High Court to be a fetter on the entitlement of the claimants to receive arrears of maintenance beyond a period of one year preceding the date of filing of the application under Section 125(3) CrPC. Having rt considered the said provision of the Code we do not find that the same creates a bar or in any way affects the entitlement of a claimant to arrears of maintenance. What the proviso contemplates is that the procedure for recovery of maintenance under Section 125(3) CrPC, namely, by construing the same to be a levy of a fine and the detention of the defaulter in custody would not be available to a claimant who had slept over his/her rights and has not approached the court within a period of one year commencing from the date on which the entitlement to receive maintenance has accrued. However, in such a situation the ordinary remedy to recover the amount of maintenance, namely, a civil action would still be available.

5. The decision of this Court in Kuldip Kaur v. Surinder Singh [(1989) 1 SCC 405 : 1989 SCC (Cri) 171] may be usefully re-

called wherein this Court has held the provision of sentencing under Section 125(3) to be a "mode of enforcement" as distinguished from the "mode of satisfaction" of the liability which can only be by means of actual payment. Para 6 of the Report to the above effect, namely, that the mode of enforcement i.e. sentencing to custody does not extinguish the liability may be extracted below: (SCC p. 409, para 6) "6. A distinction has to be drawn between a mode of en- forcing recovery on the one hand and effecting actual recov- ery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a 'mode ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 12 2026:HHC:17096 of enforcement'. It is not a 'mode of satisfaction' of the liabili- ty. The liability can be satisfied only by making actual pay- ment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to .

obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Be it also realised that a person or- dered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance 'without sufficient cause' to comply with the order. It would indeed be strange to hold that a person who 'without reasonable cause' refuses to comply with the order of the court to maintain his neglected wife or child would be absolved of his liability merely because he of prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fal- len in arrears. Monthly allowance is paid in order to enable the wife and child to live by providing with the essential eco- nomic wherewithal. Neither the neglected wife nor the neg- rt lected child can live without funds for purchasing food and the essential articles to enable them to live. Instead of pro- viding them with the funds, no useful purpose would be served by sending the husband to jail. Sentencing to jail is the means for achieving the end of enforcing the order by re- covering the amount of arrears. It is not a mode of discharg- ing liability. The section does not say so. Parliament in its wisdom has not said so. Commonsense does not support such a construction. From where does the court draw inspi-

ration for persuading itself that the liability arising under the order for maintenance would stand discharged upon an effort being made to recover it? The order for monthly allowance can be discharged only upon the monthly allowance being recovered. The liability cannot be taken to have been dis- charged by sending the person liable to pay the monthly al-

lowance, to jail. At the cost of repetition it may be stated that it is only a mode or method of recovery and not a substitute for recovery. No other view is possible. That is the reason why we set aside the order under appeal and passed an or-

der in the following terms ...."

6. In another decision of this Court in Shantha v. B.G. Shivananjappa [(2005) 4 SCC 468 : 2005 SCC (Cri) 1089] it has been held that the liability to pay maintenance under Section 125 CrPC is in the nature of a continuing liability. The nature of the right to receive maintenance and the concomitant liability to pay was also noticed in a decision of this Court in Shahada Khatoon v. Amjad Ali [(1999) 5 SCC 672 : 1999 SCC (Cri) 1029] . Though in a slightly different context, the remedy to approach the court by means of successive applications under Section 125(3) CrPC highlighting the subsequent defaults in payment of maintenance was acknowledged ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 13 2026:HHC:17096 by this Court in Shahada Khatoon [(1999) 5 SCC 672 : 1999 SCC (Cri) 1029] .

7. The ratio of the decisions in the aforesaid cases squarely applies to the present case. The application dated 5-2-2002 filed by the .

appellants under Section 125(3) was in continuation of the earlier applications and for subsequent periods of default on the part of the respondent. The first proviso to Section 125(3), therefore did not extinguish or limit the entitlement of the appellants to the maintenance granted by the learned trial court, as has been held by the High Court."

13. In the aforesaid judgment, Hon'ble Apex Court held that the contentions advanced in Shahada Khatoon case (supra) was rt that the liability of husband arising out of an order passed under Section 125 to make payment of maintenance is a continuing one and, on account of non-payment, Magistrate would be entitled to impose sentence upon such person continuing him in custody until payment is made, meaning thereby Magistrate can keep such person in custody or sentence him until he makes payment of the arrears amount. However, Hon'ble Apex Court in Shahada Khatoon case (supra), taking note of the language of sub-section (3) of Section 125, which contemplates a punishment of imprisonment which may extend to one month or until payment, if, sooner made, negatived aforesaid submissions made at the behest of the respondents, holding therein that powers of the Magistrate cannot be enlarged and therefore, the only remedy available after expiry of one month would be for the wife to again approach the Magistrate for similar relief on account of breach or non-compliance of the order. Hon'ble Apex Court further ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 14 2026:HHC:17096 held that, by no stretch of imagination, Magistrate can be permitted to impose sentence for more than one month in a single instance.

14. In Poongodi case (supra), Hon'ble Apex Court clarified that where the arrears of maintenance have been claimed and, despite issuance of warrant, there is non- compliance, decision rendered in Shahada Khatoon (supra) is distinguishable. In the of aforesaid judgment, Hon'ble Apex Court, while observing that Section 488 of the Code of Criminal Procedure, which is pari material to Section 125(3) of the Act, held that Magistrate may, for every breach rt 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 execution of warrant, to imprisonment for a terms which may extend to one month.

15. It would also be apt to take note of judgment rendered by Hon'ble High Court of Judicature at Bombay Bench at Aurangabad in case titled as Anil Sampatrao Kothawale versus Pushpabai Anil Kothawale and others, passed in Criminal Writ Petition No.1778 of 2017, wherein order passed by learned Sessions Judge, modifying the order passed by learned Magistrate to the effect that the petitioner shall suffer simple imprisonment for a terms of 12 months covering the period from 25.04.2016 to 24.04.2017 or until payment of Rs. 1, ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 15 2026:HHC:17096 08,000/- if sooner made. The order of imprisonment continues from 25.09.2017. Relevant paragraphs of the judgment are reproduced .

herein below:-

"3. Learned counsel for the petitioner submits that the Magistrate has committed an error in sentencing the petitioner for 12 months of imprisonment by invoking the power under Section 125 (3) of Cr.P.C. and has also erred in reading and applying the said provisions to the present case. The order passed by the learned Magistrate is without jurisdiction.

of The learned Magistrate has not considered the ratio laid down by the Supreme Court in the case of Shahada Khatoon and others vs. Amjad Ali and others, reported in (1999) 5 SCC 672. Learned counsel submits that the learned Sessions Judge has partly accepted the contention of the rt petitioner that the amount of arrears of past one year are only recoverable, however, failed to further appreciate the contention of the petitioner that he ought not to have been sentenced to one year imprisonment. Thus, the continuation of the petitioner in custody will amount to illegal detention, since the sentence imposed upon him is in excess of the period provided by crwp1778.17 law. The learned Additional Sessions Judge, instead of remanding the matter for fresh consideration to the learned Magistrate, has committed an error in deciding the matter and thereby the petitioner has lost the chance to agitate the point of sentence before the trial court. The petitioner is in custody for more than one month. The maximum sentence would be imposed for one month and since the same is already over, he is required to be released forthwith. Thus, now the detention of the petitioner will violate his right to life since he cannot be detained for more than one month. Learned counsel for the petitioner thus submits that the petition may be allowed.

Learned counsel for the petitioner, in order to substantiate his submissions, placed reliance on the following judgments:-

i) Poongodi and anther vs. Thangavel, reported in (2013) 10 SCC 618;

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ii) Laljee Yadav vs. State of Bihar and others, reported in (2011) 4 PLJR 248;

iii) Shahada Khatoon and others vs. Amjad Ali and others, reported in (1999) 5 SCC 672.

iv) Judgment of this court (Nagpur Bench) dated 04.09.2017 in Criminal writ petition No. 264 of 2015 (Mohd. Aarif Pathan s/o Ibraham Pathan vs. State of Maharashtra and others."

9. In the case of Laljee Yadav vs. State of Bihar and others (supra), relied upon by learned counsel for the petitioner, the Supreme Court in para 29 and 30, has made the following of observations:-

"29. Again, this is significant inasmuch as the maintenance being a monthly payment, for each month's default, defaulter can be sentenced for a month's imprisonment. Now, we find there is a rt concept of one month as a unit. Here, we may refer to the crwp1778.17 decision of the Apex Court in the case of since in the case of Shahada Khatoon & Others - Versus- Amjad Ali & Others, [(1999) 5 Supreme Court Cases 672]. That case went from this Court and a similar stand was taken on behalf of the wife before the Apex Court that so long as payment is not made, the husband would be liable to be detained and the person would continue in custody until payment is made. The Apex Court rejected the contention. Their Lordships referred to sub-section (3) of Section 125. The judgment of the Apex Court, as reported, is quoted hereunder:

"The short question that arises for consideration is whether the learned Single Judge of the Patna High Court correctly interpreted sub-section (3) of Section 125 of Cr.P.C. by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned counsel for the appellants contends that the liability of the husband arising out of an order passed under Section 125 to make payment of maintenance is a continuing one and on account of non-payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. We are unable to accept this contention of the learned counsel for the appellants. The language of sub- section (3) of Section 125 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. In that view of the matter the High crwp1778.17 Court was fully justified in passing the impugned order and we see no infirmity in the said order to be ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 17 2026:HHC:17096 interfered with by this Court. The appeal accordingly fails and is dismissed."

(Emphasis supplied) .

30. Here, we may like to point out another aspect of the matter. As seen above, the maintenance is to be fixed on monthly basis. The sentence has, accordingly, been limited to a month maximum for each breach. Thus, as noticed by the Apex Court in the above referred to cases, there has to be separate sentencing upon separate and fresh application after considering the matter for each month or part thereof for which maintenance remains unpaid. Thus, by no stretch of imagination, can there be a continuous mechanical remand as in the present case."

10. Thus the ratio laid don by the Supreme court by referring the case of Shahada Khatoon (supra) also supports the contention raised by learned counsel for the respondents in the present case. In the case of Suo Motu vs. State of Gujarat in criminal rt reference No.2 of 2008 decided on 30.9.2008, the following question has been referred to the Full Bench of the Gujarat High Court:-

"In the light of the decision of the Supreme Court in the case of Shahada Ors. vs. Amjad Ali and Ors, (1999) 5 SCC 672, when a person is ordered to pay maintenance under sub-section (1) of Section 125 of the Code of Criminal procedure, 1973 fails without sufficient cause to comply with such order, whether the learned Magistrate, in exercise of powers under sub-section (3) of section 125 is empowered to sentence such person to imprisonment for a term exceeding one month."

7 In para 21 and 22 of the judgment, the full Bench of Gujarat High Court has answered the said question in following terms:-

"21 For the reasons already stated, we find that the Supreme Court in Shahada Khatoon's case did not lay down the ratio that regardless of the extent of default on the part of the husband in paying maintenance, the Magistrate can impose imprisonment of maximum of one month. We are in respectful disagreement with the view expressed by some of the High Courts to the contrary.

22. In the result, question is answered in following terms:

"Magistrate in exercise of powers under section 125 of the Criminal Procedure Code is empowered to sentence a defaulting person for a term upto one month (or until payment if sooner made) for each month of default subject of course to the limitation provided in proviso to sub-section (3) of section 125. In other words, it is open for the Magistrate to award sentence upto a maximum of one month for each month of default committed by the person ordered to pay maintenance and the maximum limit of sentence of one month referred to in sub- section (3) of section 125 will be applicable for each month of default. Magistrate can ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 18 2026:HHC:17096 entertain separate applications from the person entitled to receive such maintenance or even entertain a common application for several months of default and pass appropriate order and, if found necessary, sentence a defaulting person upto a maximum one month fore each month of default. In all such cases, however, .

period of limitation provided in sub- section (3) of section 125 shall have to be borne in mind."

In Special Criminal Application No. 897 of 2008, we may notice that for the unpaid maintenance for the period from 7.6.02 to 6.8.05, application under section 125(3) of the Criminal crwp1778.17 Procedure Code was made on 1.7.06. We may, however, leave the factual aspects to the learned single Judge to work out and confine ourselves to answering the of reference made to the Larger Bench.

Reference stands disposed of accordingly."

11. Even the Division Bench of this court in the case rt of Gorakshnath Khandu Bagal vs. State of Maharashtra and others, (supra) relied upon by learned counsel for the respondents, while dealing with the similar issue, in para 7 and 9 has also taken a similar view as taken by the Full Bench of Gujarat High Court.

12. So far as the judgment of this Court (Nagpur Bench) in the case of Mohd. Aarif Pathan s/o Ibrahim Pathan vs. State of Maharashtra and others (supra), relied upon by learned counsel for the petitioner is concerned, the ratio laid down by the Division Bench of this court in the case of Gorakshnath Khandu Bagal vs. State of Maharashtra and others, (supra) was not brought to the notice of learned Single Judge of this court. Thus, the judgment rendered by the learned Single Judge of this Court in the criminal writ petition No. 264 of 2015, as aforesaid, is per incuriam.

13. It is thus clear that the Magistrate, in exercise of the powers under Section 125 of Cr.P.C., is empowered to sentence the defaulting person for a term of one month for each month of default.

17. In other words, it is open for the Magistrate to award the sentence up to maximum one month for each month's default made by the person ordered to pay the maintenance. Thus, the maximum limit of sentence of one month referred to in Sub-section (3) of Section 125 of Cr.P.C. is applicable for each month of default. Even the Magistrate can entertain separate applications or even entertain a common application for several months of default and pass appropriate order. If there are arrears of more than one month, then the imprisonment exceeding the period of one month can be imposed."

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16. Taking note of various judgments passed by Hon'ble Apex Court in aforesaid case, Hon'ble High Court of Bombay held that .

though the Magistrate can entertain separate applications or even entertain a common application for several months of default and pass appropriate order, but if where arrears of maintenance pertain to more than one month, then the imprisonment exceeding the period of of one month can be imposed.

17. Reliance is also placed upon the judgment passed by rt Hon'ble Rajasthan High Court in case titled Shantha & Ushadevi & others vs. B.G. Shivananjappa, reported in AIR 2005 SC 2410, wherein it has been held as under:-

"It is true that the amount of maintenance became due by virtue of the Magistrate's order passed on 20th January, 1993 and in order to seek recovery of the amount due by issuance of warrant, application shall be made within a period of one year from the date the amount became due. In the present case, the application, namely, Crl. Misc. Petition No. 47 of 1993 was filed well within one year. As no amount was paid even after the disposal of the matter by the High Court, the appellant filed I.A. 1 in Crl. Misc. Petition No. 47 of 1993 wherein the arrears due up to that date were calculated and sought recovery of that amount under Section 125 (3). Thus, I.A. 1 was filed even when Crl. Misc. Petition 47 of 1993 was pending and no action to issue warrant was taken in that proceeding. Crl. Misc. Petition of 47 of 1993 which was filed within one year from the date the amount became due was kept alive and it was pending althrough. The purpose of filing I.A. on 1st September, 1998 was only to mention the amount due upto date. The fact that the additional amount was specified in the I.A. does not mean that the application for execution of the order by issuing a warrant under Section 125(3) was a fresh application made for the first time. As already noticed, the main petition filed in the year 1993 was pending and kept alive and the filing of subsequent I.A. in 1998 was only to specify the exact amount which accrued due upto that date. Such application is only supplementary or incidental to the petition already filed in 1993 admittedly within ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 20 2026:HHC:17096 the period of limitation. The fact that only a sum of Rs. 5,365/- representing the arrears of eight months was mentioned therein does not curtail the scope of Crl. Misc. Petition filed in 1993 more so when no action was taken thereon and it remained pending."

18. In the aforesaid judgment, Hon'ble Apex Court, while taking note of proviso of Section 125(3)Cr.P.C, which provides that "

no warrant shall be issued for the recovery of any amount due under this Section unless the application is made to the Court to levy such of amount within a period of one year from the date on which it became due, held that legislature has made it clear that even though the rt maintenance, which is awarded under Section 125 Cr.P.C., is recurring every month, an option has been given to the claimant to file an application for the recovery of the amount within a period of one year from the date on which it becomes due and as such, there is no requirement in law that a separate application should be filed for every month's maintenance, meaning thereby claimant can file a consolidated application for levying the amount due for the period of preceding 12 months and there is no impediment against that. It was further held that for default pertaining to 12 previous months, the Court may simultaneously issue separate warrants for levying every month's due amount and if, despite service, the defaulter fails to make the payment, then separate sentences of imprisonment upto one month may be passed for every month's default.

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19. Admittedly, in the case at hand, sum of Rs. 5000/- per month maintenance was awarded to respondents No.1 to 3, but same .

was not paid w.e.f. June, 2018 to 2019. Petitioner made a statement before the Court below that he would deposit the amount, but since he failed to do so, Judicial Magistrate sentenced him to civil imprisonment for 15 and 25 days for non-payment of arrears for the of month of July and August, 2018 respectively, but fact remains that during aforesaid period of 15 days, he failed to pay the maintenance for the month of July, 2018 and by which time, arrears for the month rt of August, 2018 had also become due.

20. Since the petitioner continuously failed to make payment of arrears of maintenance for months of June, July and August, he rendered himself liable for imprisonment under Section 125(3)Cr.P.C.

Careful perusal of impugned orders clearly reveals that had the petitioner made payment of arrears of maintenance, he would have been released forthwith, but since, despite his having given an undertaking to the Court, he failed to clear the arrears amount and , during pendency of payment of arrears for the previous month, further arrears for the subsequent months also became due, learned Court below right sent him to civil imprisonment for a period of 30, 15 and 25 days.

21. In the judgments taken note hereinabove, it has been categorically held that in one application, 12 defaults can be clubbed ::: Downloaded on - 16/05/2026 12:19:26 :::CIS 22 2026:HHC:17096 together and, after every 12 defaults, a separate application is required to be filed. However, in that eventuality, in each application, .

as there are maximum 12 defaults, the Magistrate may impose imprisonment extending up to a period of 12 months, but the same would be outer limit.

22. Since, in the instant case, respondents had filed of consolidated applications for June 2018 to 2019, no illegality can be said to have been committed by the Court below, while rejecting the objections raised at the behest of the petitioner, who attempted to rt argue before the Court below that under Section 125(3) Cr.P.C. a person cannot be sent to civil imprisonment for a term which may extend to one month for non-compliance of the order unless a fresh execution application is moved.

23. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds no merit in the present petition and accordingly, same is dismissed.

Pending applications, if any, also stand disposed of. Interim order, if any is vacated.

24.

(Sandeep Sharma), Judge May 14,2026 (shankar) ::: Downloaded on - 16/05/2026 12:19:26 :::CIS

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