Introduction
This case involves a wife who filed an application under Section 125 of the Code, requesting maintenance for herself and her two minor children, which was granted by the learned Magistrate. However, the husband failed to pay the maintenance amount, and the wife initiated recovery proceedings. The husband was sentenced to one month in prison each time the wife filed an application for recovery of unpaid maintenance. The husband challenged the magistrate’s decision to sentence him to imprisonment in a criminal revision, arguing that the magistrate’s authority to impose imprisonment cannot be expanded. The wife argued that the husband was required to serve one month of imprisonment for each month of default, as per the provisions of Subsection (3) of Section 125 of the Code.
Brief facts
Miscellaneous Criminal Application 42/1996 was lodged by the respondent-wife under Section 125 of the Code, requesting maintenance for herself and her two minor children. On 8 November 2000, the learned Magistrate granted maintenance of Rs 600 per month to the wife and Rs 300 per month to each of the two children plus costs. The maintenance amount remained unpaid for an extended period of time, and as a result, the wife initiated recovery proceedings which were numbered Miscellaneous Criminal Application No. 42/2000. By order dated 18-6-2001, the learned Magistrate issued an arrest warrant and a distress warrant against the husband, and upon the husband’s appearance before him, he was sentenced to one month in prison. The cumulative maintenance arrears spanned from 25 September 1996 to 25 October 2000 (almost 4 years and 1 month). The payment remained unpaid, so on 16 July 2001, when the wife resubmitted the application, the husband was again sentenced to one month in prison. Subsequently, the wife filed a second application upon which the learned Magistrate issued an order on 14 August 2001 mandating that the husband serve one month in jail. Subsequently, the wife again filed an application, upon which the learned Magistrate issued an order on September 12, 2001, again mandating that the husband serve one month in jail. The said husband also filed an application requesting his release from jail on the grounds that the learned Magistrate erred in his interpretation of Subsection (3) of Section 125 of the Code of criminal procedure. This application was denied by the learned Magistrate, and the spouse challenged the ruling in a criminal revision which was dismissed by the learned Additional Sessions Judge.
Issue
Whether the act of magistrate was justified in punishing the husband with imprisonment of one month each time when the wife had filed applications from time to time for recovery of maintenance which had remained unpaid.
Contentions of the parties
Contentions of the petitioner-
Mr. Mohta, the learned counsel for the husband, argued that a straightforward reading of the provisions of Subsection (3) of Section 125 of the Code makes it clear that the Magistrate has the authority to impose imprisonment for up to one month or until the payment is made, whichever comes first. This magistrate’s authority cannot be expanded, so the only recourse is after one month has passed. For violation or noncompliance with the magistrate’s order, the wife may seek similar relief from the magistrate. He argued that, consequently, the Magistrate erred in denying the husband’s request for his release from prison, and that the said order has been erroneously confirmed by the learned Additional Sessions Judge, and that these orders cannot be upheld in law. In support of these claims, he cited the Allahabad High Court’s ruling in Dilip Kumar v. Family Court, Gorakhpur, 2000 Cri.L.J. 3893 and the Supreme Court’s ruling in Shahada Khatoon v. Amjad Ali, 1999(3) Mh.L.J. 290.
Contentions of the respondent- Mrs. Anjali Joshi, the learned counsel for the wife and children, argued that the learned Magistrate was fully justified in rejecting the husband’s application because, in accordance with Subsection (3) of Section 125 of the Code, the husband was required to serve one month of imprisonment for each month of default. She argued that the decisions of the Allahabad High Court and the Supreme Court, upon which reliance is placed, are inapplicable to the facts and circumstances of the present case because it is undisputed that the wife had filed periodic applications with the Magistrate requesting the recovery of the unpaid maintenance allowance. According to her, therefore, there is no basis for interference with the challenged order issued by the learned Additional Sessions Judge.
“Section125. Maintenance order for spouses, children, and parents –
(3) If the person fails to comply with the order without sufficient cause, the magistrate may, for each violation, issue a warrant for levying the amount due in the manner prescribed for levying fines, and may sentence the person to imprisonment for the whole or any portion of each month’s allowance for the maintenance or interim maintenance and expenses of proceeding remaining unpaid after the execution of the warrants.
PROVIDED that no warrant shall be issued for the recovery of any amount due pursuant to this section unless the court is petitioned to levy such amount within one year of the date 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 ground 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.
Judgement
The ratio established by the Supreme Court in the case of Shahda Khatoon cannot be contested. What is apparent in the present case is that the wife initiated recovery proceedings under Misc. Criminal Application No. 42/2000, for which the maintenance amount warrant was issued on 18-June-2001. The maintenance extended from 25 September 1996 to 25 October 2000, or for four years and one month. On 16-7-2001, the wife filed another application (Exh. 17), on 14-8-2001, she filed another application (Exh. 20), and on 12-9-2001, she filed another application (Exh. 21). Based on these applications, the spouse was ordered to serve one month in jail. Thus, this is not a situation in which the magistrate has continued the husband’s incarceration without the wife’s request for relief. The wife had filed periodic applications for recovery of the unpaid maintenance amount; therefore, the Magistrate was perfectly justified in ordering that the husband serve one month in jail each time, as it is undisputed that the maintenance arrears extended over a period of more than four years. In these circumstances, the impugned order issued by the learned Additional Sessions Judge could not be faulted, and this court is of the opinion that no case has been made out for interference, as there is nothing in the record to indicate that the impugned order has led to a miscarriage of justice.
Conclusion
The husband’s contention that the Magistrate erred in interpreting Subsection (3) of Section 125 of the Code of Criminal Procedure was dismissed, and it was held that the Magistrate was justified in sentencing the husband to one month in jail for each default of payment of maintenance. The wife had filed periodic applications for the recovery of unpaid maintenance allowance, and the Magistrate had the authority to issue a warrant for levying the amount due and to sentence the person to imprisonment for each violation. The orders issued by the Magistrate and confirmed by the Additional Sessions Judge were upheld.
This Article is Written by Ankit Singh, 4th-year B.A.LL. B, CAIL Bengaluru
