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2008 DIGILAW 544 (GAU)

Md. Razaul Karim v. Musstt. Farida Khatoon

2008-07-30

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. By order, dated 19.11.2005, passed, in FC (Cri.) Case No. 122/03, which arose out of an application made by the opposite party herein, as first party, seeking maintenance, under Section125, Code of Criminal Procedure from the present Petitioner, as second party, the learned Principal Judge, family court, Guwahati, passed an order directing the present Petitioner to pay, as second party in the said maintenance Proceeding, a sum of Rs.600 per month, as maintenance allowance, to the opposite party from the date of making of the application seeking maintenance. 2. As the present Petitioner had failed to comply with the directions, given in the order, dated 19.11.2005, aforementioned, the learned court below issued, in course of time, warrant of arrest against the Petitioner and the Petitioner was accordingly arrested, on 9.6.2008, due to the non-payment of maintenance allowance. Upon expiry of a period of one month from the date of his arrest, the Petitioner applied to the learned court below for his release, but this petition has been rejected by order, dated 9.7.2008, passed by the learned court below. It is this order, dated 9.7.2008, which stands impugned in this revision. 3. Heard Mr. M.H. Ahmed, learned Counsel for the Petitioner, and Mr. Z. Kamar, learned Additional Public Prosecutor, Assam. 4. While considering the present revision, what needs to be borne in mind is that Section 125(3), Code of Criminal Procedure empowers a Magistrate to issue warrant for realizing the amount due in the manner as if the same is realization of levy of fine and the Magistrate 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 non-payment 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. 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. 5. 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. v. Amjad Ali 1999 Cri. LJ 5060. 6. 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 present 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. 7. In the case at hand, the opposite party herein has, admittedly, not made any further application under Section 125(3), Code of Criminal Procedure. Situated, thus, the learned court below could not have kept the Petitioner in detention for a period longer than one month. 8. Considering, therefore, the matter in its entirety and in the interest of justice, the order, dated 9.7.2008, and also subsequent order(s), if any, passed thereafter, providing for Petitioner's detention m 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 allowance. 9. 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 allowance. 9. With the above observations and directions, this criminal revision petition shall stand disposed of.