Zahida Razakbhai Makrani and Another vs State of Gujarat and Another

J.C. Upadhyaya, J.—Challenge in this revision application preferred u/s 397 r/w Section 401 of the Code of Criminal Procedure (hereinafter referred to as ''CrPC'' for the purpose of brevity) is to the judgment and order dated 06.06.2007 rendered by learned Presiding Officer, 8th Fast Track Court, Rajkot in Criminal Revision Application No. 70 of 2007. The learned FTC allowed the said Criminal Revision Application and the order passed by the learned Judicial Magistrate (F.C.), Rajkot in Criminal Misc. Application No. 1625 of 2006 on 16.04.2007 came to be set aside and the learned FTC directed that the imprisonment of one month sentence shall be imposed on the Respondent No. 2 - husband.

The Petitioners herein are wife and minor son of the Respondent No. 2 - Razakbhai Kasambhai. Zahida Razakbhai Makrani - wife, Petitioner No. 1 herein filed maintenance application u/s 125 of the Code of Criminal Procedure against the Respondent No. 2 husband for recovering monthly maintenance for herself and for her minor son Sameer. By order dated 03.10.2006, the learned Judicial Magistrate (F.C.), Rajkot directed the Respondent No. 2 herein - husband of Petitioner No. 1 and father of Petitioner No. 2 to pay Rs. 1,000/- per month by way of maintenance to the Petitioner No. 1 - Zahida and Rs. 500/- per month to Petitioner No. 2 - Sameer. The arrears of the amount of maintenance was ordered to be paid w.e.f. 26.09.2005. Thereafter, the Petitioner No. 1 - wife filed an application u/s 125(3) of Code of Criminal Procedure bearing Criminal Misc. Application No. 1625 of 2006 wherein she alleged that despite the maintenance order came to be passed in her favour and in favour of her son, yet Respondent No. 2 - husband was not complying with the said order and Rs. 22,700/- remained in arrears which was the maintenance of the period of 15 months. The learned Magistrate initially issued Recovery Warrant for recovery of Rs. 22,700/- being the arrears of the maintenance. Despite that, the Respondent No. 2 - husband did not pay any amount of maintenance and, therefore, the learned Magistrate issued non-bail able warrant. Pursuant to the said warrant, Respondent No. 2 came to be arrested and was produced before the learned Magistrate. When the Respondent No. 2 was produced before the learned Magistrate, he expressed his unwillingness to pay the amount. The learned Magistrate thereafter by virtue of the judgment and order dated 16.04.2007 came to the conclusion that on account of non-payment of maintenance for the period of 15 months, the Respondent No. 2 - husband was liable to undergo imprisonment in jail for the period of 15 days for each month''s arrears. Since the amount found to be due for maintenance was for the period of 15 months, the learned Magistrate, accordingly directed the Respondent No. 2 - husband to undergo imprisonment for 225 days.

The Respondent No. 2 herein challenged the said order before the Sessions Court, Rajkot by preferring Criminal Revision Application No. 70 of 2007. The learned FTC, Rajkot in the order dated 06.06.2007 relied upon the decision in the case of Shahada Khatoon and Others Vs. Amjad Ali and Others, and came to the conclusion that as per the ratio laid down by the Hon''ble Apex Court in that case, a Magistrate can only impose sentence for a period of one month or until the payment is made, whichever is earlier. Accordingly, it was directed that the order passed by the learned Magistrate sentencing the Respondent No. 2 - husband in jail exceeding the period of one month was illegal. It is in this background that the learned FTC in the impugned order dated 06.06.2007 set aside the order passed by the learned Magistrate and directed the Respondent No. 2 - husband herein to undergo imprisonment of one month only.

Mr. Mrugen Purohit, learned advocate for the Petitioners submitted that the impugned order passed by the learned FTC is contrary to law and facts on record. My attention was drawn to a Full Bench decision of this Court dated 30.09.2008 in the case of Suo Motu v. State of Gujarat, in Criminal Reference No. 2 of 2008 and it is submitted that in the said decision, this Court referring Shahada Khatoon''s case (supra) and subsequent decisions of the Hon''ble Apex Court and other High Courts including this Court, came to the conclusion that learned Magistrate in exercise of powers u/s 125 of Code of Criminal Procedure is empowered to sentence a defaulting person for a term up to one month (or until payment if sooner made) for each month of default subject of course to the limitation provided in proviso to Sub-section (3) of Section 125. Mr. Purohit, therefore, submitted that for each month''s default, the Magistrate is empowered to pass an order of sentence of imprisonment up to 30 days and in the instant case, since the amount of maintenance was found in arrears for the period of 15 months, the maximum sentence of imprisonment which the Magistrate could have passed was imprisonment for 450 days, but since the learned Magistrate observed that for each month''s default, sentence of imprisonment for 15 days would meet with the ends of justice, the Respondent No. 2 herein was sentenced to undergo total period of imprisonment of 225 days. Mr. Purohit, learned advocate for the Petitioners, therefore, submitted that since the issue is now well settled by the Full Bench decision of this Court (supra), this Criminal Revision application preferred by the Petitioners before this Court deserves to be allowed. However, when the attention of learned advocate Mr. Purohit was drawn to the limitation aspect contained under Sub-section (3) of Section 125 of CrPC, and more particularly, the fact that the learned Magistrate cannot issue warrant regarding recovery of the arrears of maintenance when the arrears exceeds one year''s duration and that if the amount in arrears exceeds one year''s duration, the period of limitation contained is one year only, Mr. Purohit fairly conceded that in the instant case, the application preferred by the Petitioners before the Magistrate was maintainable only for the recovery of arrears of maintenance for 12 months and, therefore, the order passed by the learned Magistrate deserves to be accordingly modified so as to bring the claim of the Petitioners within the period of limitation.

Mr. Kartik Pandya, learned Additional Public Prosecutor for Respondent No. 1 - State submitted that the dispute involved in this matter has been set at rest by the Full Bench decision dated 30.09.2008 relied upon on behalf of the Petitioners and, therefore, necessary order may be passed.

Respondent No. 2, though served, did not remain present.

A bare perusal of the impugned judgment and order rendered by the learned FTC, Rajkot dated 06.06.2007 would reveal that relying upon Shahada Khatoon''s case (supra), the learned FTC, Rajkot in paragraph 9 of the impugned order came to the conclusion that in the said decision, the Hon''ble Apex Court observed that the Magistrate can only impose sentence for a period of one month or till the payment is made, whichever is earlier and, therefore, in this matter the order passed by the learned Magistrate to award sentence of imprisonment for 225 days (exceeding one month) was bad in law. Accordingly, the learned FTC, Rajkot modified the order passed by the learned Magistrate and awarded the sentence of imprisonment of one month to the Respondent No. 2 herein.

Considering the Full Bench decision in Criminal Reference No. 2 of 2008 dated 30.09.2008, this Court answered the reference in paragraph 22 in the said judgment. The reference which came to be referred to the Full Bench was as under:

In the light of the decision of the Supreme Court in the case of Shahada Khatoon and Others Vs. Amjad Ali and Others, when a person is ordered to pay maintenance under Sub-section (1) of Section 125 of the Code of Criminal Procedure, 1973 fails without sufficient cause to comply with such order, whether the learned Magistrate, in exercise of powers under Sub-section (3) of Section 125 is empowered to sentence such person to imprisonment for a term exceeding one month.

The Full Bench of this Court took into consideration the ratio laid down in Shahada Khatoon''s case and also took into consideration the subsequent decisions on this point delivered by the Hon''ble Apex Court and other High Courts including this Court. In paragraph 17 in the said decision, it was observed as under:

From the decision of the Apex Court in the case of Shahada Khatoon, it can be seen that it was a case wherein on behalf of the wife, it was contended that liability of husband arising out of the order passed u/s 125 to make payment of maintenance is a continuing one and on account of non-payment, there has been breach of the order and it would, therefore, be open for the Magistrate to impose sentence on such a person continuing him in custody until payment is made. It was in this background that the Apex Court observed that language of Sub-section (3) of Section 125 circumscribes the powers of the Magistrate to impose imprisonment for a period which may extend to one month or until the payment if sooner made. In the said decision, the Hon''ble Supreme Court did not lay down the proposition that under Sub-section (3) of Section 125 of the Criminal Procedure Code, it is not open for the Magistrate to pass a consolidated order of sentencing the defaulting husband in excess of one month for several months of defaults.

Ultimately, the question referred to the Full Bench of this Court came to be replied in paragraph 22 as under:

In the result, question is answered in following terms:

Magistrate in exercise of powers u/s 125 of the Code of Criminal Procedure is empowered to sentence a defaulting person for a term up to one month (or until payment if sooner made) for each month of default subject of course to the limitation provided in proviso to Sub-section (3) of Section 125. In other words, it is open for the Magistrate to award sentence up to a maximum of one month for each month of default committed by the person ordered to pay maintenance and the maximum limit of sentence of one month referred to in Sub-section (3) of Section 125 will be applicable for each month of default. Magistrate can entertain separate applications from the person entitled to receive such maintenance or even entertain a common application for several months of default and pass appropriate order and, if found necessary, sentence a defaulting person up to a maximum one month for each month of default. In all such cases, however, period of limitation provided in Sub-section (3) of Section 125 shall have to be borne in mind.

In the above view of the matter, it clearly transpires that the dispute involved in the instant matter has been squarely settled by this Court in the above referred decision. It can further be said that the learned FTC in the impugned judgment and order, therefore, erred in not properly appreciating the ratio laid down by the Hon''ble Apex Court in Shahada Khatoon''s case (supra). The net conclusion, therefore, would be that the impugned judgment and order passed by the learned FTC is contrary to law and the discretionary powers exercised by it can be said to be an arbitrary exercise of powers.

However, in the instant case, as per the order of learned Magistrate, 15 days'' imprisonment came to be awarded to Respondent No. 2 - husband, for the default of payment of maintenance of each month and since the default was of 15 months, the Respondent No. 2 - husband was directed to undergo imprisonment for 225 days (15 days x 15 months). However, as stated above, as per proviso attached to Section 125(3), it is clearly provided that no warrant shall be issued for 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. Even in the above referred Full Bench decision of this Court, it has been clearly observed that in all such cases, however, period of limitation provided in Sub-section (3) of Section 125 shall have to be borne in mind. Under such circumstances, this Court is of the opinion that the arrears of maintenance for the period of 12 months can only be taken into consideration while passing appropriate order. The learned Magistrate, considering the facts and circumstances of the case, came to the conclusion that 15 days imprisonment for each month''s default of maintenance would meet with the ends of justice and this Court does not find any justifiable reason to interfere with the discretion exercised by the learned Magistrate while fixing the quantum of sentence. However, the same should be of 180 days (12 months x 15 days) and not 225 days. The instant Criminal Revision Application, therefore, deserves to be allowed in the above terms.

For the foregoing reasons, this Criminal Revision Application is allowed and the impugned judgment and order dated 06.06.2007 rendered by learned Presiding Officer, 8th Fast Track Court, Rajkot in Criminal Revision Application No. 70 of 2007 is hereby set aside and the judgment and order dated 16.04.2007 rendered by learned Judicial Magistrate (F.C.), Rajkot in Criminal Misc. Application No. 1625 of 2006 is restored, subject to the modification that the sentence of imprisonment awarded by the learned Magistrate to the Respondent No. 2 herein, namely, Razakbhai Kasambhai Makrani shall be 180 days and not 225 days. Rule is made absolute accordingly.