- (1.) HEARD learned counsel for the revisionist and the learned AGA. This criminal revision has been filed against order dated 26.7.2010 passed by Judicial Magistrate, Mau, in case no.4001 of 2006 Pyari Vs. Shiv Chand by which the revisionist has been directed to be detained in jail for one year rigorous imprisonment for default of payment of amount of maintenance. Learned counsel for the revisionist has submitted that under the provisions that Section 125(3) of the Cr.P.C., a Magistrate has no jurisdiction to impose punishment for a term which may extend to one month or until payment if sooner is made. It has also been submitted that a Magistrate cannot impose a composite sentence for the default and he is obliged to pass separate orders for separate defaults. Learned AGA has defended the impugned order.
(2.) THE Execution Case No.4001 of 2006 Pyari Vs. Shiv Chand was pending before the Court of Judicial Magistrate, Mau in which the application was submitted on behalf of the applicant that the opposite party was directed to pay a sum of Rs.500/- and Rs.300/- to the applicant nos.1 and 2 as maintenance which was modified to Rs.600/- per month. In compliance of the order of the Court, the revisionist has paid on 26.10.2006 Rs.600/- as maintenance and after that no maintenance has been paid. Therefore, there were dues against revisionist from 22.11.2005 to 22.11.2010. It was also stated that on 11.8.2008 the revisionist-opposite party has been released from jail after a period of one month but still a sum of Rs.48,000/- is due against him. Regarding which he was again detained into custody since 30.6.2010. Learned Magistrate after considering all the facts and circumstances has directed that the revisionist-opposite party shall undergo one year rigorous imprisonment and whatever amount shall be received by the work done by the revisionist, shall be paid to the applicant. Learned counsel for the revisionist has relied upon Iftekhar Husain Vs. Smt. Hameeda Begum 1980 Cri.L.J.,1212 in which, this Court has held that Section 125(3) Cr.P.C. limits the power of the Magistrate to sentence the defaulter for the whole or any part of each months allowance remaining unpaid, after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment, if made sooner. Learned counsel for the revisionist has further relied upon Dilip Kumar Vs. Family Court, Gorakhpur, 2000 Cri.L.J. 3893 in which, this Court has considered the scope of Section 125(3) Cr.P.C., has held as under :- "From these it is clearly available that the person can be kept under confinement for each months default and the confinement can be only for period of a month. The subsequent part "until payment if sooner made" further clarifies the situation to the extent that such a husband can be confined to a period of one month even if the default is of more than a month and he can be allowed to come out of jail if the payment is made within this period on any date his confinement will come to an end. The purpose behind this enactment of provision for confinement is to put an end to the sufferings of the wife by compelling the husband to pay the maintenance amount."
(3.) LEARNED counsel for the revisionist has further relied upon Shahada Khatoon Vs. Amjad Ali (1999) 5, SCC, 672 in which, Hon'ble the Apex Court has held as under:- "The short question that arises for consideration is whether the Learned Single Judge of the Patna High Court correctly interpreted Ss (3 of Section 125 of Criminal Procedure Code by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned counsel counsel for the appellants contends that the liability of the husband arising out of an order passed under section 125 to make payment of maintenance is a continuing one and on account of non payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. We are unable to accept this contention of the learned counsel for the appellants. The language of Ss 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, is 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. In that view of the matter the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. The appeal accordingly fails and is dismissed." ;