ZAHIDA RAZAKBHAI MAKRANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CHALLENGE in this revision application preferred under Section 397 r/w Section 401 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC' for the purpose of brevity) is to the judgment and order dated 06.06.2007 rendered by learned Presiding Officer, 8th Fast Track Court, Rajkot in Criminal Revision Application No.70 of 2007. The learned FTC allowed the said Criminal Revision Application and the order passed by the learned Judicial Magistrate (F.C.), Rajkot in Criminal Misc. Application No.1625 of 2006 on 16.04.2007 came to be set aside and the learned FTC directed that the imprisonment of one month sentence shall be imposed on the respondent No.2 " husband.

(2.) THE petitioners herein are wife and minor son of the respondent No.2 " Razakbhai Kasambhai. Zahida Razakbhai Makrani " wife, petitioner No.1 herein filed maintenance application under Section 125 of the CrPC against the respondent No.2 husband for recovering monthly maintenance for herself and for her minor son Sameer. By order dated 03.10.2006, the learned Judicial Magistrate (F.C.), Rajkot directed the respondent No.2 herein " husband of petitioner No.1 and father of petitioner No.2 to pay Rs.1,000/- per month by way of maintenance to the petitioner No.1 " Zahida and Rs.500/- per month to petitioner No.2 " Sameer. THE arrears of the amount of maintenance was ordered to be paid w.e.f. 26.09.2005. THEreafter, the petitioner No.1 " wife filed an application under Section 125 (3) of CrPC bearing Criminal Misc. Application No.1625 of 2006 wherein she alleged that despite the maintenance order came to be passed in her favour and in favour of her son, yet respondent No.2 " husband was not complying with the said order and Rs.22,700/- remained in arrears which was the maintenance of the period of 15 months. THE learned Magistrate initially issued Recovery Warrant for recovery of Rs.22,700/- being the arrears of the maintenance. Despite that, the respondent No.2 " husband did not pay any amount of maintenance and, therefore, the learned Magistrate issued non-bailable warrant. Pursuant to the said warrant, respondent No.2 came to be arrested and was produced before the learned Magistrate. When the respondent No.2 was produced before the learned Magistrate, he expressed his unwillingness to pay the amount. THE learned Magistrate thereafter by virtue of the judgment and order dated 16.04.2007 came to the conclusion that on account of non-payment of maintenance for the period of 15 months, the respondent No.2 " husband was liable to undergo imprisonment in jail for the period of 15 days for each month's arrears. Since the amount found to be due for maintenance was for the period of 15 months, the learned Magistrate, accordingly directed the respondent No.2 " husband to undergo imprisonment for 225 days.

(3.) MR. Kartik Pandya, learned Additional Public Prosecutor for respondent No.1 " State submitted that the dispute involved in this matter has been set at rest by the Full Bench decision dated 30.09.2008 relied upon on behalf of the petitioners and, therefore, necessary order may be passed.