- (1.) Heard learned counsel for applicant, Sri Shankar Suan, learned counsel for the opposite party, and also learned A.G.A., for the State.
(2.) On the last date, while admitting this application, a clear direction was given to the State counsel that he shall also prepare himself on the question whether any court deciding an application for recovery of the amount due under Section 125, Cr.P.C. to the wife from the delinquent husband can pass an order of his confinement for a period of one year compositively or any other consolidated period.
(3.) A perusal of Section 125(3), Cr.P.C. very clearly indicates that no such order can be passed by any court, be it Family Court or a Court of a Judicial Magistrate. The Courts are entitled to pass an order against any delinquent husband who has not made the payment and allowed the wife to lead a destitute life, in the absence of such payment, to a confinement or imprisonment for a term which may extend to one month or until payment if sooner made. The earlier portion of this sub-section clearly shows that this confinement of imprisonment will be against each months default. Section 125(3), Cr.P.C. is quoted below."(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 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 : 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.";