Patna High Court - Orders
Amit Kumar Kesari vs Rita Devi & Anr on 6 May, 2013
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.338 of 2013
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Amit Kumar Kesari, S/O Gopal Prasad Kesari, Resident of Mohalla-
Marwari Bazar, P.S.- Samastipur Town, District- Samastipur.
.... .... Petitioner.
Versus
1. Rita Devi, W/O Late Dinesh Das (Alleged Wife Of Amit Kumar Kesari)
and daughter of Devki Das, Resident of Mohalla- Bahadurpur, P.S. and
District- Samastipur.
2. Ankit Kumar, S/O Late Dinesh Das (Alleged Son of Amit Kumar Kesari,
Minor) through Guardian (Opposite Party No.2).
3. The State of Bihar.
.... .... Opposite Parties.
For the Petiioner:- Jitendra Narayan Sinha, Advocate.
For the State :- Sanjay Kumar Pandey, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
ORAL ORDER
3 06-05-2013Heard learned counsel for the petitioner and Additional Public Prosecutor for the State.
This criminal revision, under Section 19(4) of the Family Courts Act, is directed against the order dated 09.01.2013 passed in Execution Case No. 77 of 2009 by the court of Principal Judge, Family Court, Samastipur, whereby the learned Principal Judge, Family Court, Samastipur ordered to be released to the petitioner after paying Rs.30,000/- in cash to the opposite party no. 1 and also on filing an undertaking to pay the remaining amount of maintenance at the rate of 10,000/- in fortnightly installments and accordingly disposed of three applications of the petitioner to Patna High Court CR. REV. No.338 of 2013 (3) dt.06-05-2013 2 release him.
The brief fact leading to this criminal revision is that opposite party nos. 1 and 2 filed the Maintenance Case No. 08 of 2003 before the Principal Judge, Family Court, Samastipur, under Section 125 Cr.P.C., which was allowed on 01.09.2009 directing the opposite party/ petitioner to pay Rs.2000/- per month to opposite parties (Rs.1,000/- per month for maintenance of opposite party no. 1 and Rs.1,000/- per month for maintenance of her minor son opposite party no. 2) from the date of order. The petitioner against the said order filed the Criminal Revision No. 1898 of 2009 before this Court and the opposite party nos. 1 and 2 also filed the Criminal Revision No. 1885 of 2009 for enhancement of maintenance amount. Criminal Revision No. 1898 of 2009 filed on behalf of the petitioner was dismissed on 13.12.2011, while in Criminal Revision 1885 of 2009 order was passed on 23.04.2012 directing the petitioner to pay Rs.10,000/- within two weeks and thereafter to pay Rs.10,000/- in fortnightly installments and fixed the next date as 08.05.2012. On 08.05.2012 due to non-compliance of order and non- appearance of the learned counsel for the petitioner, order was passed to direct the Superintendent of Police, Samastipur to produce the petitioner Patna High Court CR. REV. No.338 of 2013 (3) dt.06-05-2013 3 under custody before the Court on 25.06.2012. In compliance of the said order, the Samastipur Town Police Station sent the notice to the petitioner to appear before the Family Court, Samastipur on 25.06.2012. Accordingly, on 25.06.2012, the petitioner appeared before the Family Court, Samastipur and he was taken in custody and sent to jail in Execution Case No. 77 of 2009 filed by the opposite party no. 1 for non-payment of the maintenance amount as ordered in Maintenance Case No. 08 of 2003. Later on, the Criminal Revision 1885 of 2009 was also dismissed by this Court on 22.01.2013. The petitioner filed three applications on 25.07.2012, 29.09.2012 and 14.12.2012 for his release, under Section 125(3) Cr.P.C., on the ground of period of custody. The Principal Judge, Family Court, Samastipur, vide impugned order dated 09.01.2013, disposed of the aforesaid petition directing the petitioner to be released after depositing/ paying Rs.30,000/- in cash to the opposite party no. 1 and also on filing an undertaking to pay remaining maintenance amount as Rs.10,000/- in fortnightly installments.
Learned counsel appearing on behalf of the petitioner submits that the petitioner has never violated any order of this Hon'ble Court or the Court below as on the basis of the Patna High Court CR. REV. No.338 of 2013 (3) dt.06-05-2013 4 information received from the Samastipur Town Police Station, he appeared before the Family Court, Samastipur and he is remanded in Execution Case No.77 of 2009 filed on behalf of opposite party no. 1 for non-payment of the arrears of maintenance. In fact the petitioner was unable to pay the arrears of maintenance amount and he is in custody since 25.06.2012, more than one month, which is against the provision of Section 125(3) Cr.P.C. The learned Principal Judge, Family Court, Samastipur passed the impugned order against the provision of Section 125(3) Cr.P.C. Learned counsel for the petitioner placed reliance on a decision in the case of Shahada Khatoon and others versus Amjad Ali and others, reported in {1999} 5 Supreme Court Cass 672.
To appreciate the submission of leaned counsel for the petitioner Section 125(3) Cr.P.C. which relates to enforcement of the order of maintenance passed under Section 125(3) Cr.P.C. reads as under:-
"If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issued a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any Patna High Court CR. REV. No.338 of 2013 (3) dt.06-05-2013 5 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 warrant, 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 recovery of any amount 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 becomes due".
On bare reading of Section 125(3) Cr.P.C., it is clear that if any person who has been ordered to pay maintenance under Section 125(1) Cr.P.C. fails without sufficient cause to comply with the order, the Magistrate may take such steps for realization of amount which are provided for levying fines and after execution of distress warrant it is found that any amount has remained unpaid, the Magistrate may sentence such person for the whole or any part of each month's allowance remaining unpaid to imprisonment for a term which may extended to one month or until payment if sooner made.
In a case of Shahada Khatoon and others versus Amjad Ali and others reported in (1999)5 Supreme Court Cases Patna High Court CR. REV. No.338 of 2013 (3) dt.06-05-2013 6 672, the Hon'ble Apex Court has held that the language of Sub- Section (3) of Section 125 is quite clear that 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 On perusal of the impugned order, it appears that the petitioner is in custody since 25.06.2012 in Execution Case No. 77 of 2009 filed by the opposite party no. 1 and since then he is in custody and his three applications filed on 25.07.2012, 29.09.2012 and 14.12.2012 for release have been disposed of by the Principal Judge, Family Court, Samastipur, directing the petitioner to be released after paying Rs.30,000/- in cash to the opposite party no. 1 and also on filing undertaking to the effect that he will pay the remaining maintenance amount at the rate of Rs.10,000/- in fortnightly installments. As such the impugned order appears to be illegal and against the spirit of Section 125(3) Patna High Court CR. REV. No.338 of 2013 (3) dt.06-05-2013 7 Cr.P.C.
Under the aforesaid facts and circumstances of the case, this criminal revision is allowed and impugned order dated 09.01.2013 is set aside. The petitioner is ordered to be released in connection with Execution Case No. 77 of 2009 pending in the court of Principal Judge, Family Court, Samastipur.
However, it is made clear that opposite party nos. 1 and 2 would be at liberty to seek relief before the Principal Judge, Family Court, Samastipur, for recovery of the further default of payment of maintenance under Section 125(3) Cr.P.C.
(Rajendra Kumar Mishra, J) Bhardwaj/-