Kishan Lal vs State of Uttarakhand and Others

Dharam Veer, J.—This criminal revision preferred u/s 397/401 of The Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) read with Section 19(4) of the Family Courts Act, 1984 is directed against the order dated 9.4.2009 passed by the Judge, Family Court, Udham Singh Nagar in Misc. Criminal Case No. 83/2007, Shoma Rani and Anr. v. Kishan Lal u/s 125(3) CrPC, whereby the Judge, Family Court has sentenced the revisionist Kishan Lal to undergo 11 months'' simple imprisonment.

Briefly stated facts of the case are that the respondent No. 2 Shoma Rani and respondent No. 3 Manav Arora filed a maintenance application u/s 125 CrPC against the revisionist Kishan Lal being his wife and minor daughter respectively. The Judge, Family Court, Udham Singh Nagar vide his judgment and order dated 4.4.2007 partly allowed the aforesaid maintenance application and directed the revisionist to pay Rs. 2000/- per month to respondent No. 2 and Rs. 500/- per month to respondent No. 3 from the date of making the said application i.e. 3.6.2005. The revisionist defaulted in making the payment of the aforesaid maintenance amount to the respondents No. 2 & 3 since the very beginning i.e. with effect from 3.6.2005 and did not pay the aforesaid amount of maintenance for continuous 22 months. The respondents No. 2 & 3 moved an application u/s 125(3) CrPC for enforcement of the aforesaid maintenance order dated 4.4.2007, which was registered as Misc. Criminal Case No. 83/2007.

Learned Judge, Family Court, Udham Singh Nagar after hearing learned Counsel for parties and after considering the facts and circumstances of the case, vide the impugned order dated 9.4.2009 sentenced the revisionist to undergo simple imprisonment for a period of 11 months for the default in making the payment of maintenance amount of Rs. 2500/- to the respondents No. 2 & 3 for 22 months and further ordered that if the payment is made sooner than the aforesaid period of sentence, the same shall be proportionately adjusted towards the sentence imposed on the revisionist. Against the aforesaid impugned order dated 9.4.2009, the revisionist has preferred the present revision.

Heard learned Counsel for the parties and perused the papers available on record.

Learned Counsel for the revisionist argued that in default of payment of maintenance amount awarded u/s 125 CrPC, the maximum imprisonment cannot exceed one month at one time on applying for the execution proceedings u/s 125(3) CrPC and, therefore, learned Judge, Family Court has misinterpreted the provisions contained u/s 125(3) CrPC while awarding the sentence of 11 months'' simple imprisonment.

I find substance in the arguments raised by learned Counsel for the revisionist. Section 125(3) CrPC clearly circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month only or until the payment, if sooner made. For the sake of convenience, Section 125(3) of the CrPC is reproduced hereunder:

Section 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 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 is 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.

Learned Counsel for the revisionist placed his reliance upon the judgment delivered by the Hon''ble Apex Court in Shahada Khatoon and Others Vs. Amjad Ali and Others, , wherein it has been held 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 CrPC 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 u/s 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 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.

Thus, the position of law on the issue under consideration is very clear that the maximum imprisonment cannot exceed one month at one time on applying for the execution proceedings u/s 125(3) CrPC. As such, the impugned order dated 9.4.2009 passed by the learned Judge, Family Court, Udham Singh Nagar suffers from illegality and the same is liable to be set aside.

For the reasons recorded above, the revision is allowed. The order dated 9.4.2009 passed by the Judge, Family Court, Udham Singh Nagar in Misc. Criminal Case No. 83/2007, Shoma Rani and Anr. v. Kishan Lal u/s 125(3) CrPC thereby sentencing the revisionist Kishan Lal to eleven months'' simple imprisonment is hereby set aside. The revisionist Kishan Lal shall be immediately released from the jail if not wanted in any other case. However, the trial court is free to recover the amount as per law.