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Uttarakhand High Court · body

2008 DIGILAW 481 (UTT)

JASPAL SINGH v. STATE OF UTTARAKHAND

2008-11-05

DHARAM VEER

body2008
JUDGMENT This criminal revision, preferred under section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) r/w Section 19(4) of the Family Courts Act, 1984, is directed against the order dated 16.11.2007 passed by Judge, Family Court, Udham Singh Nagar in Case No. 18/2007, Smt. Sarjeet Kaur & another Vs. Jaspal Singh, whereby the Judge Family Court sentenced the revisionist-Jaspal Singh for ten months’ simple imprisonment. 2. I have heard Sri Tapan Singh, learned counsel for the revisionist, Sri M.A. Khan, learned brief holder for the State as well as Sri D.K. Sharma, learned counsel for respondent nos. 2 & 3 and perused the entire material available on record. 3. In brief, the facts of the case are that respondent no. 2 – Sarjeet Kaur moved an application u/s 125(3) Cr.P.C. for the recovery of the amount awarded against the revisionist, i.e. Rs. 400/- per month to respondent no. 2 and Rs. 200/- per month to respondent no. 3. It was averted in the application that the revisionist has not paid the amount of twenty months (in total Rs. 30,872/-) which is due on the revisionist of the maintenance of respondent nos. 2 and 3. For the recovery of the said amount, respondent no. 2 moved an application before the Judge, Family Court, Udham Singh Nagar with the prayer that the recovery warrant be issued against the revisionist. 4. After considering entire facts and circumstances of the case and hearing learned counsel for the parties, learned Judge, Family Court, Udham Singh Nagar passed an order that in the default of the above said payment the revisionist is sentenced to ten months’ simple imprisonment. 5. 4. After considering entire facts and circumstances of the case and hearing learned counsel for the parties, learned Judge, Family Court, Udham Singh Nagar passed an order that in the default of the above said payment the revisionist is sentenced to ten months’ simple imprisonment. 5. Learned counsel for the revisionist referred to Section 125(3) of the Cr.P.C., which is reproduced as under :- “(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, issued 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. 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.” 6. On the basis of the above said section, learned counsel for the revisionist submitted that for the application made one time, only one month’s imprisonment should be awarded against the revisionist. I find substance in the argument raised by learned counsel for the revisionist that in default of payment, application moved by in one time, maximum imprisonment awarded against the revisionist is one only month. For the reasons discussed above, the order dated 16.11.2007 passed by Judge, Family Court, Udham Singh Nagar, for awarding ten months’ imprisonment is illegal and not as per the law. 7. For the reasons recorded above, the revision is allowed. For the reasons discussed above, the order dated 16.11.2007 passed by Judge, Family Court, Udham Singh Nagar, for awarding ten months’ imprisonment is illegal and not as per the law. 7. For the reasons recorded above, the revision is allowed. The order dated 16.11.2007 passed by Judge, Family Court, Udham Singh Nagar in Case No. 18/2007, Smt. Sarjeet Kaur & another Vs. Jaspal Singh, for sentencing the revisionist-Jaspal Singh to ten months’ simple imprisonment is set aside. However, the trial court is free to recover the amount as per the law.