Bombay HC: Magistrate Can't Order Imprisonment For More Than 12 Months' Default In Maintenance In A Single Application

The issue has already been settled by division bench of this Court in the case of Gorakshnath Khandu Bagal (supra) and in one application 12 defaults can be clubbed together and after every 12 defaults a separate application will have to be filed, and as such, the Magistrate may impose imprisonment for term of 12 which is the outer limit. However, it needs to be noted that for the subsequent default, a separate application can be filed for which separate imprisonment can be imposed subject to the limitation prescribed by the proviso that the same is filed within a period of one year from date which it becomes due. {Para 22}

23. Now coming to the facts of the present case, upon query by this

Court, learned Counsel for Respondent No. 2 submitted that the issuance of warrant was pursuant to the application dated 27th July, 2023 annexed at Page 57 of the Petition. Perusal of the application indicates that the pleading is that there is default of 59 months and the intermittent payments made by the Petitioner were set out. Considering the proviso to Section 125(3) of CR.P.C, it was incumbent upon the Metropolitan Magistrate to first consider whether the application has been filed in respect of default of monthly maintenance for period of 12 months preceding the application, which was not done. The impugned order does not indicate any finding on the aspect of period of default and it is only observed that there is default of 47 months when the application states that there is default of 59 months. The Petitioner has been sentenced to simple imprisonment for period of 47 months for default of 47 months without noticing the outer limit on power of the Magistrate to impose sentence of imprisonment which is set out in the proviso to sub section (3) of Section 125.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION (ST) NO.2435 OF 2024

J Vs The State of Maharashtra

CORAM : SHARMILA U. DESHMUKH, J.

PRONOUNCED ON : FEBRUARY 26, 2024

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What is procedure for execution of an order for maintenance U/S 125 of CRPC?

 As per the former part of Section 125 (3) regarding the recovery of maintenance, the recovery of maintenance or interim maintenance may be made by applying the procedure of issuing warrant for levying the amount due in the manner provided for levying fines i.e. by way of applying provisions of section 421 of Code of Criminal Procedure i.e. by way of:

1. Issuing a warrant of attachment and sale of any movable property belonging to defaulter.

2. Issuing a warrant to the Collector of the district for realizing the amount from movable or immoveable property of the defaulter;
   And as per the later part of Sec. 125(3) in case of maintenance or interim maintenance remaining unpaid after the execution of the warrant the Magistrate may -
   Sentence such person, for the whole or any part of each month's allowance for the maintenance or interim maintenance and expenses of proceeding, as the case may be, to one month or until payment if sooner made.

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Can the court issue an arrest warrant against the Non-applicant for recovery of the maintenance amount without issuing a distress warrant?

On a plain reading of sub-section (3) of Section 125 Cr.P.C., it is

apparently clear that in the event of any failure on the part of any person to comply with an order to pay maintenance allowance, without sufficient cause, the Magistrate is empowered to issue warrant for levying the  amount due in manner provided for levying of fines for every breach of the order. Section 421Cr.P.C. prescribes the manner for levying fine and clause (a) of sub-Section (1) of Section 421 provides for issuance of warrant for levy of the amount by attachment and sale of any movable

property belonging to the offender. In other words, in the event of any failure without sufficient cause to comply with the order for maintenance allowance, the Magistrate is empowered to issue distress warrant for the purpose of realization of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may seized in execution of such warrant. Sub-section (3) of Section 125 Cr.P.C. makes it further clear that the jurisdiction of the Magistrate for sentencing such

person to imprisonment would arise only after the maintenance allowance, in whole or in part, remains unpaid after the maintenance allowance, in warrant. It is only after the sentence of imprisonment is awarded by the Magistrate under sub-section (3) of Section 125 that the occasion may arise for issuance of warrant of arrest for bringing the person concerned to Court for his committal to prison to serve out the sentence.

It is further apparent that the Magistrate has no jurisdiction to issue warrant of arrest straight way against the person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the court without first levying the amount due as fine and without making any attempt for realization that fine in one or both the modes for recovery of that fine as provided for in clauses (a) or (b) of sub-Section (1) of Section 421 Cr.P.C. say by issuance

of distress warrant for attachment and sale of movable property belonging to the defaulter as contemplated under Section 421 (1) (a) and without first sentencing the defaulter to imprisonment after the execution of the distress warrant.

In view of aforesaid, this Court finds that the Principal Judge, Family Court, Kasganj has not followed the establish procedure for issuance of recovery warrant in default of payment of arrears maintenance allowance within the time allowed by him in the execution case concerned. The order directing issuance of warrant of arrest is patently illegal and not warranted by law. Order dated 30.11.2021 is hereby set aside.

ALLAHABAD HIGH COURT

Case :- APPLICATION U/S 482 No. - 4483 of 2022

Applicant :- Vipin Kumar

Opposite Party :- State of U.P. and Another

Coram: Hon'ble Ajit Singh,J.

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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 limitation of one year under 1st Proviso to Sub-section (3) of S125 applicable to minors?

Criminal - limitation period for minors - Section 3 of Limitation Act, 1963 and Section 125 of Criminal Procedure Code, 1973 - whether limitation of one year under 1st Proviso to Sub-section (3) of Section 125 applicable to minors - minors are not sui juries mere fact that they can be represented by mother, father of other guardian is of no consequence - 1st proviso of Sub-section (3) of Section 125 applicable to major - maintenance holders and not minor-maintenance holders - held, limitation of one year specified under 1st proviso to Sub-section (3) of Section 125 not applicable to minors.

Andhra High Court

Laxmi And Ors. vs Nakka Narayan Goud And Anr. on 4 October, 1993

Equivalent citations: 1994 CriLJ 565, I (1994) DMC 224

Bench: B S Reddy

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Will the subsequent application of the wife for recovery of maintenance be time-barred if her first application was within limitation?

It is true that the amount of maintenance became due by virtue of the Magistrate's order passed on 20th January, 1993 and in order to seek recovery of the amount due by issuance of warrant, application shall be made within a period of one year from the date the amount became due. In the present case, the application, namely, Crl. Misc. Petition No. 47 of 1993 was filed well within one year. As no amount was paid even after the disposal of the matter by the High Court, the appellant filed I.A. 1 in Crl. Misc. Petition No. 47 of 1993 wherein the arrears due up to that date were calculated and sought recovery of that amount under Section 125 (3). Thus, I.A. 1 was filed even when Crl. Misc. Petition 47 of 1993 was pending and no action to issue warrant was taken in that proceeding. Crl. Misc. Petition of 47 of 1993 which was filed within one year from the date the amount became due was kept alive and it was pending althrough. The purpose of filing I.A. on 1st September, 1998 was only to mention the amount due upto date. The fact that the additional amount was specified in the I.A. does not mean that the application for execution of the order by issuing a warrant under Section 125(3) was a fresh application made for the first time. As already noticed, the main petition filed in the year 1993 was pending and kept alive and the filing of subsequent I.A. in 1998 was only to specify the exact amount which accrued due upto that date. Such application is only supplementary or incidental to the petition already filed in 1993 admittedly within the period of limitation. The fact that only a sum of Rs. 5,365/- representing the arrears of eight months was mentioned therein does not curtail the scope of Crl. Misc. Petition filed in 1993 more so when no action was taken thereon and it remained pending.

We are, therefore, of the view that in the peculiar circumstances of the case, the bar under Section 125(3) cannot be applied and the High Court has erred in reversing the order of Sessions Judge. It must be borne in mind that Section 125 Cr. P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under Section 125(1) is a continuing liability. For the above reasons, we set aside the impugned order of the High Court and restore the order passed by the Additional District Judge, Tumkur in Crl. R.P. No. 194 of 2000. The learned Magistrate shall take appropriate steps under Section 125 (3) in case the arrears of maintenance is not paid within three months.

Supreme Court of India

Shantha @ Ushadevi & Anr vs B.G.Shivananjappa on 6 May, 2005

Bench: P. Venkatarama Reddi, A.K. Mathur

Citation: (2005) 2 BLJR 1296 SC

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