DEV RAJ Vs. SAVITA DEVI
LAWS(J&K)-2006-6-7
HIGH COURT OF JAMMU AND KASHMIR
Decided on June 02,2006

DEV RAJ Appellant
VERSUS
SAVITA DEVI Respondents

JUDGEMENT

Y.P.NARGOTRA, J. - (1.) THIS Criminal Revision petition is directed against the orders dated 12.4.2004, 11.5.2004, 10.6.2004 and 9.7.2004 passed by the learned Munsiff Judicial Magistrate Udhampur under Sub -section (3) of Section 488 of Cr.P.C. in execution of the interim maintenance granted in favour of respondents Under Section 488 Cr.P.C. The petitioner is the husband of Savita Devi and father of minor son respondent No. 2. The respondents filed an application under Section 488 Cr.P.C. against the petitioner for claiming maintenance. Learned Munsiff Judicial Magistrate by his order dated 30th September 2003 granted interim maintenance (a), Rs. 1000/ - to wife respondent No. 1 and Rs. 600/ - to minor son respondent No. 2 from the date of institution of the application. When despite the order, the petitioner did not pay the amount of maintenance ordered to be paid to the respondents, the respondents filed an application Under Section 488(3) of Cr.P.C. for seeking enforcement of the order dated 30th September 2003. On the said application notice was issued to the petitioner. The petitioner appeared and sought opportunities for making the payment. When he did not pay, the learned trial court by its order dated 12th April 2004 sentenced the petitioner to undergo simple imprisonment for a period of one month on account of default in paying the maintenance amount for the period w.e.f. 10.7.2003 to 10th September 2003. It was also ordered that in case the arrears of maintenance were paid during the period of his imprisonment in that event he shall be set at large. The application filed by the respondents, however, was not disposed of and it was ordered to be listed on 11.5.2004 with a direction for production of the petitioner before the court. On 11.5.2004 the petitioner after suffering the sentence imposed was produced before the trial court. On this date as the arrears of maintenance for the period with effect from 10.7.2003 to 10.9.2003 had not been paid and for which he had already suffered the sentence the learned trial court by its order dated 11.5.2004 extended his sentence for a further period of one month. This time also it was ordered that in case if the arrears of maintenance were paid during the period of his imprisonment, in that event he shall be set at large and the case was ordered to be listed on 10th June 2004. Pursuant to the order dated 11.5.2004 the petitioner in custody came to be produced before the learned trial court on 10.6.2006. The respondent filed another application for grant of maintenance and recovery of arrears which had fallen due. The learned trial court without affording any opportunity to the petitioner to show cause as to why he had not paid the arrears of maintenance once again sentenced him to undergo an imprisonment of one month and the petitioner was sent back to prison for suffering the sentence of one month by order dated 10.6.2004. After suffering the imprisonment again for another month the petitioner was produced in custody before the learned trial court and this time again on the application of the respondent, learned trial court extended his sentence for another one month on account of his having not paid the maintenance. Pursuant to the order dated 9.7.2004 the petitioner was to be produced before the trial court on 8.8.2004, but on that date it was Sunday so he was produced before the Magistrate on 9.8.2004. On this date as well learned trial court on the application of the respondent once again sentenced the petitioner to undergo simple imprisonment for a period of one month on account of his default committed towards the payment of maintenance. It may be mentioned here that against the repeated sentences by orders dated 12.4.2004, 11.5.2004, 1 1.6.2004 and 9.7.2004 the petitioner preferred a revision petition in the court of learned sessions Judge, Udhampur. Learned Sessions Judge by his order dated 5.11.2004 without even summoning the respondent dismissed the revision petition summarily without taking note of the legal position. The petitioner having failed before the learned Sessions Judge, Udhampur has approached this Court for invoking the revisional jurisdiction of this Court. Learned trial court thus made the petitioner to suffer imprisonment for various spells co tenuously.
(2.) COULD the petitioner be sentenced and made to suffer the same in the aforesaid manner under law? , is the question arising for consideration. I have heard the learned Counsel for the parties and perused the record. Sub -section (3) of Section 488 Cr.P.C. under which the learned trial court imposed the sentence on the petitioner reads as follows: 488(3) Enforcement of the order. - 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 manner hereinbefore provided for levying fines, and may sentence such 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.
(3.) FROM the reading of the above provision it is manifest that if a person against whom an order of maintenance has been made fails to comply the order without sufficient cause the Magistrate is empowered to issue a warrant for levying the amount due in the manner warrant for levying the fines is issued under the Cr.P.C. and it is only after execution of such warrant order for sentencing such person can be issued if whole or any part of the amount remains unpaid. The sentence for any particular breach in no case can be awarded or extended beyond a period of one month. A Division Bench of Andhra Pradesh High Court in Abdul Gafoor alias Ashan v. Smt. Hamima Khatoon and Ors. While considering the scope of the provisions of Sub -section (3) of Section 125 of the Central Criminal Procedure Code which corresponds to Section 488 (3) of State Cr.P.C. observed: From bare perusal of this provision, it becomes clear that a person against whom an order under Section 125(3) of the Code is made does not become liable to imprisonment on passing of an order of maintenance, his liability to suffer imprisonment only starts if he fails to respond to a warrant issued under Section 125(3) of the code for payment of maintenance. A warrant has to be issued under Section 125(3) of the Code for payment of maintenance, when an application is made by the person who has been held entitled to maintenance under Section 125 of the Code. When such a warrant is issued for making payment of maintenance, it has to be levied as the amount due in the manner provided for levying fines and if this warrant is not responded by making the payment, then the Magistrate can order imprisonment and the imprisonment in no case can exceed one month. Therefore, it is immaterial whether there were arrears of 12 months or of any other duration. The material question is whether warrant under Section 125(3) of the Code been issued or not and in case of one warrant issued under Section 125(3) of the Code, there can only be one imprisonment and the maximum imprisonment would be one month.;


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