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2006 DIGILAW 958 (GAU)

Esahaque Ali v. Alekjan Nessa @ Kulson

2006-11-01

I.A.ANSARI

body2006
ORDER I.A. Ansari, J. 1. This application, made under Section 482 read with Section 401 Code of Criminal Procedure, is directed against the order, dated 21.07.2006, passed by the Sub-Divisional Judicial Magistrate (Sadar), Barpeta, in MR Case No. 276/98, rejecting the prayer for release made by the Petitioner. 2. I have heard Mr. R. Ali, learned Counsel, for the Petitioner, and Mr. K. Munir, learned Additional Public Prosecutor, Assam. 3. The material facts leading to this petition may, in brief, be set out thus: The opposite party herein, who is wife of the present Petitioner, instituted, as first party, a proceeding, under Section 125 Code of Criminal Procedure, seeking directions for maintenance allowance from the present Petitioner. This maintenance proceeding was finally disposed of, on 22.06.2004, with direction to the Petitioner to pay Rs. 300/- per month as maintenance allowance to the opposite party and Rs. 200/- as maintenance allowance, for the son of the parties concerned, with effect from the date of making of the petition for maintenance, following the passing of the said order of maintenance, when the Petitioner failed to make payment of the maintenance allowance, as had been directed, the opposite party herein made an application, under Section 125(3) Code of Criminal Procedure, praying for appropriate order in the matter. The learned Court below, then, directed issuance of warrant against the Petitioner. Warrant was accordingly executed, the Petitioner was arrested and, on being produced in the Court on 20.01.2006, he was remanded to custody by order, dated 20.01.2006. As the Petitioner has not made payment of the arrear amount of maintenance, his repeated prayer seeking his release has been turned down, the last order of rejection of such a prayer of the Petitioner being on 21.07.2006. 4. In the backdrop of the facts indicated hereinabove, what is, now, required to be determined is this: whether it is permissible for a Magistrate to continue to keep, in detention, a person, against whom an order for maintenance has been passed, for an indefinite period or until payment of the arrear dues of maintenance is made? What is, also, now, required to be determined is as to whether the learned Court below is justified, in law, in keeping the Petitioner in custody for non-payment of maintenance allowance since 20.01.2006? 5. What is, also, now, required to be determined is as to whether the learned Court below is justified, in law, in keeping the Petitioner in custody for non-payment of maintenance allowance since 20.01.2006? 5. From a careful reading of Sub-section (3) of Section 125 Code of Criminal Procedure, it becomes clear that for non-payment of maintenance allowance, a Magistrate is empowered to issue warrant for realizing the amount due in the manner as if the same is realization of the levy of fine and may, in such a case, sentence such a person, for the whole or any part of each month's allowance 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. These provisions clearly indicate that though the liability of the husband to make payment of maintenance under Section 125 Code of Criminal Procedure is a continuing one, yet on account of nonpayment of maintenance or breach of the order of maintenance, the person, proceeded against, cannot be detained longer than a period of one month for each such default. The language of Section 125 Code of Criminal Procedure circumscribes the power of the Magistrate to impose imprisonment for a term, which may extend to one month or until payment if made sooner. It is also worth noticing that under the proviso to Section 125(3), no application for realization/recovery of the arrears of maintenance allowance can be made beyond the period of one year from the date on which the payment becomes due. 6. Thus, when a husband does not make payment of maintenance for a period longer than one month and his wife applies for order(s) under Section 125(3), the Magistrate cannot sentence the husband for such default to a period longer than one month irrespective of the period for which the payment has not been made. On expiry of the period to which such a person is sentenced, the Magistrate must set the person at liberty. However, for further default in making payment of maintenance, the wife may make fresh application in terms of Section 125(3) and when such an application is made, the magistrate may, in accordance with law, sentence the husband for such period as may be proper; but such period of imprisonment cannot exceed one month. (See Shahada Khatoon and Ors. However, for further default in making payment of maintenance, the wife may make fresh application in terms of Section 125(3) and when such an application is made, the magistrate may, in accordance with law, sentence the husband for such period as may be proper; but such period of imprisonment cannot exceed one month. (See Shahada Khatoon and Ors. v. Amjad Ali reported in 1999 CriL.J. 5060 (SC). 7. What crystallizes from the above discussion is that for non-payment of maintenance allowance, a Magistrate cannot sentence and keep in detention a person, such as the Petitioner, for a period longer than one month irrespective of the fact whether the default for payment of maintenance was for a month or a year. 8. In the case at hand, the opposite party herein has, admittedly, not made any further application under Section 125(3). Situated thus, the learned Court below could not have kept the Petitioner in detention for a period longer than one month. 9. Considering, therefore, the matter in its entirety and in the interest of justice, the order, dated 21.07.2006, and also subsequent orders, if any, passed thereafter, providing for Petitioners detention in custody are hereby set aside and the Petitioner is directed to be released forthwith. The order, so made, shall not, however, debar the opposite party from making any further application in terms of the provisions of Section 125(3), for further default, if any, on the part of the Petitioner, to pay the maintenance allowances. 10. Send forth with a copy of this order to the learned Court below. 11. With the above observations and directions, this Criminal Petition shall stand disposed of.