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2010 DIGILAW 2716 (MAD)

Chellamuthu v. Sarasal @ Sarasu

2010-07-06

T.SUDANTHIRAM

body2010
Judgment :- 1. The revision petitioner herein is the husband of the first respondent and father of the respondents 2 and 3. The respondents have filed an application before the learned Chief Judicial Magistrate under Section 128 of Cr. P.C. claiming the arrears of maintenance amount for the period from 05.06.2002 to 05.06.2008, totaling to a sum of Rs.15,600/-. The petitioner/husband did not pay the maintenance amount and the learned Chief Judicial Magistrate passed an order, sentencing the petitioner to undergo simple imprisonment for a period of six months or until the payment if sooner made. Aggrieved by the said order of the learned Chief Judicial Magistrate, the petitioner/husband had preferred this Criminal Revision. 2. The learned counsel for the petitioner submits that the petitioner had been in jail for more than a month and under Section 125 (3) Cr.P.C. an order of detention has been passed against the petitioner for violation to comply with the maintenance only for a maximum period of one month and not for several months. The learned counsel for the petitioner also relied on a decision of the Honble Supreme Court reported in (1999) 5 SCC 672 in ( Shahada Khatoon and others Vs. Amjad Ali and others) wherein it is held as follows:- "The language of sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month. For breach or non-compliance with the order of the Magistrate, the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month. " The learned counsel for the petitioner also relied on a another decision of this Court reported in 2005, L.W.(Crl.) 384 (Mahboob Basha Vs. Nannima @ Hajara Bibi and another), wherein it is held as follows: "Under sub-section (3) of Section 125 Cr.P.C. It has been made clear that the power of the Magistrate imposing imprisonment on the failure of the husband to pay maintenance has been restricted to only one month or until paymnet if sooner made. Nannima @ Hajara Bibi and another), wherein it is held as follows: "Under sub-section (3) of Section 125 Cr.P.C. It has been made clear that the power of the Magistrate imposing imprisonment on the failure of the husband to pay maintenance has been restricted to only one month or until paymnet if sooner made. After the one month, for every breach or non-compliance of the order of the Magistrate, wife can approach the Magistrae once again for similar relief. Therefore, the orders of the Learned Chief Judicial Magistrate made in Crl.M.P Nos.795 and 796 of 2003 are set-aside since the petitioner has already been in jail for more than 3 ½ months. " 3. The submissions made by the learned counsel for the respondent were also heard. 4. From the ratio laid down in the cases cited above, it is held that the learned Magistrate has no power to detain a person for more than a month at a time. The order of the Learned Chief Judicial Magistrate in this case, sentencing the petitioner to undergo simple imprisonment for a period of six months at a stretch is erroneous. Therefore, the sentence of six months simple imprisonment imposed on the revision petitioner is modified to a period of one month imprisonment, which the petitioner had already undergone. The revision petition is ordered accordingly. Consequently, connected M.Ps. are closed.