- (1.) In the present application under Section 401 read with Section 482, Cr. P.C., the petitioner has challenged the order 28-6-2004 passed by the learned Judge, Family Court, Calcutta in Misc. Ex. Case No. 27 of 2004. The petitioner is the husband and for non-payment of the amount , curmaintenance, a proceeding under Section 125(3) Cr. P.C. was initiated and the husband/petitioner was brought under arrest as he failed to make the payment.
(2.) It is submitted by the learned Advocate of the petitioner that the petitioner is in custody for 42 days and accordingly, the petitioner made a prayer before the learned Magistrate for his release, which was turned down by the learned Magistrate, who fixed the next date on 28-7-2004 for production of the Opposite Party and payment of the amount.
(3.) In disposing of the present application, I rely upon a judgment of the Hon'ble Supreme Court reported in (1999) 5 Supreme Court Cases 672 (Shahada Khatoon v. Amjad Ali. In the said judgment, it was held by the Hon'ble Apex Court as follows: The language of sub-section (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, if 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,";