The question which arises for determination before this
Court is as to whether a Court can in exercise of its powers under Section 125(3) Cr.P.C. impose composite civil imprisonment in case of default in payment of maintenance arrears/allowances, for a period of more than one month, in a single stroke.
The relevant provisions of Section 125(3) Cr.P.C. are
extracted as under:-
“125(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 allowances
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 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 grounds 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, it shall be considered
to be just ground for his wife' s refusal to live with him.”
A perusal of the aforementioned leaves no manner of doubt
that for breach of payment of maintenance for each month, the Court can impose a maximum sentence of one month only, unless of course, if the payment of the arrears is made sooner. In Shahada Khatoon's case (Supra), the Supreme Court while dealing with a similar question held in no uncertain terms that the powers of the Magistrate are restricted and no sentence exceeding the maximum i.e. one month, can be imposed for default, and if at all the default persists even after the
expiry of one month the only remedy available to the aggrieved party would be to approach the Magistrate concerned again after the expiry of one month for enforcing her claim of maintenance for sending the delinquent husband to civil imprisonment. Therefore, what flows from Shahada Khatoon's case (supra) is that the defaulter can under no circumstances be ordered to undergo composite civil imprisonment for a period beyond one month irrespective of the fact that the arrears etc.
claimed in a single application by the aggrieved party may be for more than one month.
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRR-1218-2021 (O&M)
Date of decision: 12.11.2021
Bal Raj Vs Priya
CORAM: MRS. JUSTICE MANJARI NEHRU KAUL
The instant revision petition has been filed to assail the
order dated 16.03.2020 passed by the Family Court, Jagadhri in an
application moved under Section 125(3) Cr.P.C. vide which the
petitioner was ordered to undergo a composite sentence of civil
imprisonment for a period of twelve months for default of payment of
maintenance allowance of 66 months (w.e.f. 27.05.2014 to 27.02.2020),
amounting to Rs.2,74,000/-.
Learned counsel for the petitioner has vehemently urged
that the Family Court gravely erred while passing the impugned order
without appreciating that for default of payment of arrears, no
composite sentence could have been ordered. In support, he placed
reliance upon the judgment of Supreme Court in Shahada Khatoon
and others Vs. Amjad Ali and others : (1999) 5 SCC 672. It was also
submitted that respondents No.1 to 3 were not even his wife and
children. Besides, they were already getting widow and destitute
children pension from the Government of Haryana. It was submitted
that soon after the passing of the impugned order the petitioner was
sentenced to civil imprisonment on 16.03.2020. On account of the
outbreak of the pandemic, he was released on parole but subsequently
he was directed by the jail authorities to surrender back, which he did
on 10.10.2021. Ever since then he was confined in the District Prison at
Yamuna Nagar.
On being put to notice Mr. Munish, Mittal, Advocate has
put in appearance and opposed the prayer and submissions made by the
counsel opposite.
Heard learned counsel for the parties and perused the
material on record.
The question which arises for determination before this
Court is as to whether a Court can in exercise of its powers under
Section 125(3) Cr.P.C. impose composite civil imprisonment in case of
default in payment of maintenance arrears/allowances, for a period of
more than one month, in a single stroke.
The relevant provisions of Section 125(3) Cr.P.C. are
extracted as under:-
“125(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 allowances
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 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 grounds 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, it shall be considered
to be just ground for his wife' s refusal to live with him.”
A perusal of the aforementioned leaves no manner of doubt
that for breach of payment of maintenance for each month, the Court
can impose a maximum sentence of one month only, unless of course, if
the payment of the arrears is made sooner. In Shahada Khatoon's case
(Supra), the Supreme Court while dealing with a similar question held
in no uncertain terms that the powers of the Magistrate are restricted
and no sentence exceeding the maximum i.e. one month, can be
imposed for default, and if at all the default persists even after the
expiry of one month the only remedy available to the aggrieved party
would be to approach the Magistrate concerned again after the expiry of
one month for enforcing her claim of maintenance for sending the
delinquent husband to civil imprisonment. Therefore, what flows from
Shahada Khatoon's case (supra) is that the defaulter can under no
circumstances be ordered to undergo composite civil imprisonment for
a period beyond one month irrespective of the fact that the arrears etc.
claimed in a single application by the aggrieved party may be for more
than one month.
As a sequel to the above, the impugned order dated
16.03.2020 is set aside being wholly unsustainable and against the
settled law. The petitioner shall be forthwith set at liberty, if not
required in any other case.
Before parting with this order, liberty is granted to the
respondents to file a fresh application, if they so wish, asserting noncompliance
of the order passed under Section 125 Cr.P.C.
12.11.2021 (MANJARI NEHRU KAUL)
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