Ashok vs Smt. R. Sharada and Superintendent, Sub-Jail

S.N. Satyanarayana, J.—This petition is filed impugning the order dated 03.08.2009 and 03.10.2009 passed by the Family Court in Crl.Misc. 112/2008 ordering arrest and detention of the Petitioner herein to judicial custody and extending the same from time to time, on his failure to pay the maintenance amount, awarded by the Family Court, Davangere, on 22.02.2008 in Criminal Misc. 234/2006.

The present petition is filed by the Respondent in Crl. Misc. No. 112/2008 seeking direction to the 2nd Respondent herein to release him from judicial custody on the ground that u/s 125(3) of Code of Criminal Procedure, no person shall be held in judicial custody for more than 30 days for non- compliance of the order passed u/s 125 towards maintenance of his wife and children.

Heard the counsel for Petitioner.

It is seen that the 1st Respondent herein is the legally wedded wife of the Petitioner. They also have a child in the wedlock, which is aged about 10 years. The 1st Respondent, wife of the Petitioner filed a petition in Crl. Misc. 234/2006 u/s 125 of Code of Criminal Procedure against the Petitioner on the ground that he is not taking care of his wife and daughter; since the wife was not having income of her own to maintain herself and the child she sought for maintenance at Rs. 5,000/- p.m., each for herself and her child. The said petition was partially allowed by order dated 22.02.2008 directing the Petitioner herein to pay a sum of Rs. 800/- p.m. to the Petitioner-wife and Rs. 500/- to the child as maintenance from the date of petition i.e., 16.11.2006 and he was further directed to pay litigation expenses of Rs. 1,000/- to the wife.

Since the Petitioner herein failed to comply with the order passed by the Family Court, Davangere, on an application filed by the wife u/s 128 of Code of Criminal Procedure registered as Crl.Misc. 112/2008, the Court below ordered for arrest and detention of husband/Petitioner herein to judicial custody by order dated 03.08.2009 and the same was extended till 21.11.2009 or until he makes payment vide order dated 03.10.2009. In the meanwhile, the present petition was filed by the husband. This Court, by order dated 23.10.2009 permitted the Petitioner to deposit 50% of the claim within a period of two weeks from that date and further directed the Family Court, Davangere, to consider the case of the Petitioner for his release on such deposit.

Pursuant to the above order, the Petitioner was released from judicial custody. However, it is the case of the Petitioner that u/s 125(3) of Code of Criminal Procedure he could not have been confined to judicial custody beyond 30 days as contemplated u/s 125(3) of Code of Criminal Procedure and his detention in judicial custody up to 82 days is contrary to the provision of Section 125(3) of Code of Criminal Procedure, which reads as under:

(1) xxx xxx xxx(2) xxx xxx xxx (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 (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 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 not with standing 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.

xxx xxx xxx

Having considered the facts and circumstances of the case and also on going through the provision of Section 125(3) of Code of Criminal Procedure, it is clear that the Court below has rightly remanded the husband/Petitioner herein to judicial custody for a period of 30 days for every offence committed by him. The direction of the Court below is to pay in all a sum of Rs. 1,300/- every month from the date of petition to his wife and daughter towards maintenance. Failure on the part of the Petitioner herein to pay the maintenance in any given month would constitute an offence for that month. Therefore, the above said provision clearly discloses that the Court below has power to extend his remand to judicial custody till he comply with the order of the Court. Therefore, in the instant case, remand of Petitioner to judicial custody by order dated 03.08.2010 and thereafter extended on 03.10 2009 till 21.11.2009 i.e., about for a period of 82 days, is in order. There is no illegality or irregularity in the order passed by the Court below in extending his stay in judicial custody beyond the period of 30 days.

Further, it is seen that the Petitioner has already been released pursuant to conditional order of this Court dated 23.10.2009 with a condition that he would deposit 50% of arrears of maintenance amount within two weeks from that day.

In the facts and circumstances of the case, the petition stands disposed of. However, the Petitioner is directed to pay balance 50% of arrears of maintenance within eight (08) weeks from today and shall continue to pay the maintenance amount as awarded by the Family Court in Crl.Misc. No. 234/2006 as and when it falls due or at the end of every month, failing which, the 1st Respondent shall have the liberty to make appropriate application before the Court below for revival of the order dated 03.08.2010.