Mohammed Naseem Khan vs Smt. Shahbunnisha and Another

Tarun Kumar Kaushal, J.—Vide order dated 26.6.2013 in M.J.C. No. 41/2011 of Principle Judge, Family Court Jabalpur petitioner was directed to pay maintenance @ Rs. 1500/- per month to the respondent no. 1 and @ 1000/- per month to the respondent no. 2, in all total amount of Rs. 2500/- per month since the date of order and further directed him to pay arrears of interim maintenance.

Vide order dated 11.3.2014 in M.J.C. No. 120/13 of Family Court directed the petitioner to suffer for non payment of the maintenance amount one month simple imprisonment again.

Admittedly, for recovery of arrears of interim maintenance/maintenance of Rs. 22,500/- on 7.2.2014 petitioner was produced in Family Court. Thereafter, on 11.2.2014, he was sent to jail to suffer simple imprisonment for one month meaning thereby petitioner was arrested on 7.2.2014 and remained in custody till 7.4.2014. In the aforesaid criminal revisions, order of sending jail as well as order of grant of maintenance have been challenged by the petitioner.

Section 125(3) of the Cr. P.C. reads 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 [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 notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Placing reliance on 1999 AIR SCW 4880-Shahada Khatoon and others Vs. Amjad Ali and others, learned counsel for the petitioner submits that Magistrate can only send the defaulter to jail for a period of one month simple imprisonment. If defaulted amount is deposited in between, then the defaulter may be released from jail at an early date also. Further placing reliance on 2007 (1) MPWN 87-Shabnam Vs. Jameel Khan, learned counsel for the petitioner submits that once if jail sentence is suffered by the defaulter then he cannot send him to custody again for the same default. Remedy available against him remains recovery of money through warrant of recovery. Learned counsel has criticized the impugned order dated 11.3.2014 on the ground that petitioner was sent to custody on 11.2.2014 for a period of one month and in continuity he extended the period of custody for one month more on presumption that for continuing defaults period of jail may be continued.

Per contra, learned counsel for the respondent submits that petitioner did not pay a single pie by way of maintenance hence, there remains only sending him to jail. In response, learned counsel for the petitioner submits that petitioner has paid Rs. 10,000/- in the Family Court by way of arrears of maintenance and he is regular for making the payments because of want of resources and want of funds.

Considering the controversy arose in present cases and provision of Section 125 of Cr. P.C. and rest by aforesaid citations, it becomes clear that on the basis of the proceedings of recovery u/s 125(3) of Cr. P.C. defaulter may be/should be sent to civil imprisonment for a period of one month only, thereafter, defaulter may be released from the custody. If defaulter is not paying maintenance at all, as has happened in present cases, then on initiation of separate proceedings/prayer of specific arrears defaulter may again be sent to civil jail, that too for a period of one month only. It should not be treated in right spirit and direction that once defaulter is sent to custody then in the event of non-payment of further maintenance, he will be kept in custody till indefinite time. Steps taken by the Family Court may be true, but procedure is not in accordance with the provisions of Section 125 Cr. P.C.. On each proceeding of recovery, defaulter may be and can be sent to civil custody for a period of one month, if failed in payment of arrears and thereafter recovery can be affected by issuance of warrant for remaining dues of maintenance money.

In view of the aforesaid, petitioner is directed to be released from custody. On the basis of fresh prayer/proceedings of recovery, in the event of willful nonpayment, nothing shall prevent the Family Court to send the defaulter in civil jail again. Needless to write that amount of compensation is just and sufficient.

Both aforesaid petitions are disposed of as indicated above with hope and trust that husband shall regularly pay the maintenance to his wife.