1. The petitioner has sought for quashing the entire proceedings in Criminal Miscellaneous No.613/2009 pending, on the file of the Family court, Belgaum, seeking enforcement of the order of maintenance. The petitioner herein is the husband of the respondent. The respondent filed an application for maintenance and it was granted in criminal Miscellaneous No. 249/2007, the copy of which has been produced at Annexure-C’. The said application was disposed of by the order dated 24.11.2009, granting maintenance of Rs.2,000/- per month to the petitioner from the date of filing of the petition i.e., from 28.06.2007. Accordingly, the respondent filed an application under section 128 of the code of criminal procedure in criminal miscellaneous No.613/2009, claiming arrears of maintenance from 28.06.2007 till 24.11.2009, amounting to Rs 58,000/- for 29 months. The respondent had sought for an order to confine the petitioner in prison for non-payment of the arrears of maintenance and in the circumstances, it is on 10.12.2010 that the petitioner was produced and was ordered imprisonment for 30 days and after the completion of 30 days he was released. Again on 07.01.20011. the petitioner was produced and he was sentenced for 30 days imprisonment and released. It is on third occasion that on 05.02.2011 the petitioner was produced and as he did not pay the arrears of maintenance, he was ordered to undergo imprisonment for 30 days more. It is in these circumstances, that aggrieved by the orders, the petitioner has approached this court to quash the entire proceedings.

2. It is the contention of the learned counsel for the petitioner that in an application for enforcement wherein the arrears of maintenance for more than one month is claimed, a person cannot be imprisoned for a period exceeding one month. Therefore, it is the contention that, though in the petition for enforcement, the arrears of maintenance for 29 months are claimed. The maximum sentence of imprisonment cannot exceed one month in one petition and that in case, if successive petitions are filed claiming maintenance for each month, in such circumstances, the husband can be confined in the prison for one month for non-payment of maintenance of the said month. On this aspect of the matter, he has placed reliance on the decision of the High Court of Andhra Pradesh, reported in 2004 Criminal Law Journal 1280 (Abdul Gafaoor alias Ashan v Smt. Hameena Khatoon and others) and also on the decision of the Calcutta High court reported in 2005 Criminal Law Journal 237 (Md. Jahangir, the Petitioner) as could be seen from the facts and the principle laid down by the different High Court in the decision referred to supra, it has been held that in case if the arrears of maintenance for a period exceeding one month, is claimed in one application under section 125(3) or 128 of the code criminal procedure, a person cannot be confined for a period exceeding one month for arrears of maintenance for recovery of arrears of more than the period of one month.

3. The Provisions of section 125(3) of the code of criminal procedure are relevant to determine the issue and I think it is just and proper to extract the said provision here under:-

“ 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 sentences such person, for the whole or any part of each month’s [allowance for the maintenance or the interim maintenance and express of proceeding as the case may be ,] 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”. (emphasis supplied is mine)

4. So as could be seen from the above said provision, the wife or a person who has in order of maintenance on her or his favour, may submit application for whole of the arrears or for each month