Supreme Court : Parole period will be excluded while considering the period of actual imprisonment

 Now, so far as the submission on behalf of the Petitioners relying upon Section 55 of the Prisons Act, 1894 that even on parole the prisoners shall be deemed to be in custody and therefore, the said period is to be included for the purpose of actual imprisonment is concerned, the aforesaid has no substance. Section 55 of the Prisons Act, 1894 shall not be applicable with respect to release on parole. Section 55 of the Prisons Act, 1894 shall be applicable in a case where a prisoner is taken out from any prison, he shall deem to have been in prison. However, the same shall not be applicable with respect to release on parole. {Para 9}

10. If the submission on behalf of the prisoners that the period of parole is to be included while considering 14 years of actual imprisonment is accepted, in that case, any prisoner who may be influential may get the parole for number of times as there is no restrictions and it can be granted number of times and if the submission on behalf of the prisoners is accepted, it may defeat the very object and purpose of actual imprisonment. We are of the firm view that for the purpose of considering actual imprisonment, the period of parole is to be excluded.

IN THE SUPREME COURT OF INDIA

Special Leave Petition (Crl.) Nos. 12574-12577 of 2022 (Arising Diary No. 29535 of 2022)

Decided On: 05.01.2023

Rohan Dhungat and Ors. Vs. The State of Goa and Ors.

Hon'ble Judges/Coram:

M.R. Shah and C.T. Ravikumar, JJ.

Author: M.R. Shah, J.

Citation:  MANU/SC/0012/2023.

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Whether court can impose an imprisonment for more than one month U/S 125(3) of CRPC?

The question which arises for determination before this

Court is as to whether a Court can in exercise of its powers under Section 125(3) Cr.P.C. impose composite civil imprisonment in case of default in payment of maintenance arrears/allowances, for a period of more than one month, in a single stroke.

The relevant provisions of Section 125(3) Cr.P.C. are

extracted as under:-

“125(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, issue 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 allowances

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.”

A perusal of the aforementioned leaves no manner of doubt

that for breach of payment of maintenance for each month, the Court can impose a maximum sentence of one month only, unless of course, if the payment of the arrears is made sooner. In Shahada Khatoon's case (Supra), the Supreme Court while dealing with a similar question held in no uncertain terms that the powers of the Magistrate are restricted and no sentence exceeding the maximum i.e. one month, can be imposed for default, and if at all the default persists even after the

expiry of one month the only remedy available to the aggrieved party would be to approach the Magistrate concerned again after the expiry of one month for enforcing her claim of maintenance for sending the delinquent husband to civil imprisonment. Therefore, what flows from Shahada Khatoon's case (supra) is that the defaulter can under no circumstances be ordered to undergo composite civil imprisonment for a period beyond one month irrespective of the fact that the arrears etc.

claimed in a single application by the aggrieved party may be for more than one month.

 IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH

CRR-1218-2021 (O&M)

Date of decision: 12.11.2021

Bal Raj  Vs Priya 

CORAM: MRS. JUSTICE MANJARI NEHRU KAUL

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Whether the trial court is under obligation while awarding multiple sentences to specify whether they would run concurrently or consecutively?

 For what has been provided in Section 31(1) CrPC read with the

expositions of this Court, it follows that the Court of first instance is under legal obligation while awarding multiple sentences to specify in clear terms as to whether they would run concurrently or consecutively. In the case of Nagaraja Rao (supra), this Court expounded on this legal obligation upon the Court of first instance in the following terms:-

“11. The expressions “concurrently” and “consecutively”

mentioned in the Code are of immense significance while

awarding punishment to the accused once he is found guilty

of any offence punishable under IPC or/and of an offence

punishable under any other Special Act arising out of one trial

or more. It is for the reason that award of former enure to the

benefit of the accused whereas award of latter is detrimental

to the accused’s interest. It is therefore, legally obligatory

upon the court of first instance while awarding sentence to

specify in clear terms in the order of conviction as to whether

sentences awarded to the accused would run “concurrently”

or they would run “consecutively”.”

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 526 OF 2021

SUNIL KUMAR @ SUDHIR KUMAR  Vs THE STATE OF UTTAR PRADESH 

Dated: MAY 25, 2021

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Whether Magistrate can impose imprisonment for more than one month if default in payment of maintenance U/S 125 of CRPC is more than one month?

In para 21 and 22 of the judgment, the full Bench of Gujarat

High Court has answered the said question in following terms:-

“21 For the reasons already stated, we find that the Supreme

Court in Shahada Khatoon's case did not lay down the ratio that

regardless of the extent of default on the part of the husband in

paying maintenance, the Magistrate can impose imprisonment

of maximum of one month. We are in respectful disagreement

with the view expressed by some of the High Courts to the

contrary.

22. In the result, question is answered in following terms:

“Magistrate in exercise of powers under section 125 of the

Criminal Procedure Code is empowered to sentence a

defaulting person for a term upto 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

upto 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 subsection

(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 upto a maximum one month fore each month of default.

In all such cases, however, period of limitation provided in subsection

(3) of section 125 shall have to be borne in mind.”

13. It is thus clear that the Magistrate, in exercise of the powers

under Section 125 of Cr.P.C., is empowered to sentence the

defaulting person for a term of one month for each month of default. In other words, it is open for the Magistrate to award the sentence up to maximum one month for each month's default made by the person ordered to pay the maintenance. Thus, the maximum limit of sentence of one month referred to in Sub-section (3) of Section 125 of Cr.P.C. is applicable for each month of default. Even the Magistrate can entertain separate applications or even entertain a common application for several months of default and pass appropriate order. If there are arrears of more than one month, then the imprisonment exceeding the period of one month can be imposed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 1778 OF 2017

Anil Sampatrao Kothawale Vs Pushpabai Anil Kothawale 

CORAM : V. K. JADHAV, JJ.

Dated :16.10.2018

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Whether the court should send husband to imprisonment for non payment of maintenance if non- payment of maintenance is not due to his willful negligence?

In the case on hand the impugned order reads thus:-

"Petition filed under section 128 of the Code of Criminal Procedure.

Respondent arrested and produced before court. No payment. Hence he is send to Central Jail, Kannur for One year."

At the very outset, it is to be noted that the provisions under section 125 (3) of Cr.P.C., obviously, cannot be regarded as a means of punishment whilst it is only a means of enforcement of payment. It cannot be regarded as an order of punishment for contempt of court. This has to be borne in mind while passing an order sentencing for imprisonment especially in view of the decision in Muhammed Kutty's case (supra) that a month's imprisonment for every default is not the rule and the  said position is very much evident from a bare perusal of section 125(3) of Cr.P.C. as well. Before passing an order under section 125(3) of Cr.P.C. it is the bounden duty of the court to consider whether the non- payment of maintenance is the result of a willful negligence on the part of the defaulter. A perusal of section 125(3) Cr.P.C. would reveal that the Magistrate may, for every breach of the order, issue a warrant for levying the amount in the manner provided for levying fines. The first proviso to section 125(3) Cr.P.C. makes it mandatory for the court to see whether the application has been made within prescribed time. 

Kerala High Court

Mohandas vs Jayanthi on 15 June, 2012

Coram: MR.JUSTICE C.T.RAVIKUMAR

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Whether liability of husband to pay maintenance is wiped out if he has undergone imprisonment for default of payment of maintenance?

 A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly maintenance allowance which has fallen in arrears on the other. Sentencing a person to jail is a `mode of enforcement'. It is not a `mode of satisfaction' of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to Jail is to oblige a person 

liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to Jail not to wipe out the liability which he has refused to discharge. be it also realised that a person ordered pay monthly allowance can be sent to jail on if he fails pay monthly allowance 1without sufficient cause' comply with the order. I would indeed be strange to hold that a person who without reasonable cause' refuses to comply with the order of the court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the revocery of the amount of monthly allowance which has fallen in arrears, Monthly allowance is paid in order to enable the wife and child to live b providing with the essential economic wherewithal. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to live. Instead of providing them with the funds, no useful purpose would be served by sending he husband to jail, Sentencing to jail, is the means for achieving the end of enforcing the order by recovering the amount of arrears. It is no a mode of discharging liability. The order for monthly allowance can be discharged only upon the monthly allowance being recovered. 

The appeal is allowed. The order passed by the learned Magistrate as confirmed by the High Court in exercise of its revisional jurisdiction to the effect that the amount of monthly allowance payable under Section 125 of the Code of Criminal Procedure is wiped out and is not recoverable any more by reason of the fact that respondent No. 1, Surinder Singh, was sent to jail in exercise of the powers under Section 125 of the Code of Criminal Procedure is set . In our opinion, respondent No. 1, husband of appellant, is not absolved from his liability to pay the monthly allowance by reason of his undergoing a sentence of jail and the amount is still recoverable notwithstanding the fact that the respondent No. 1 husband who is liable to pay he monthly allowance has undergone a sentence of jail for failure to pay the same.

Supreme Court of India

Smt. Kuldip Kaur vs Surinder Singh And Anr on 3 November, 1988

Equivalent citations: 1989 AIR 232, 1988 SCR Supl. (3) 762

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