JUDGMENT

Sanjay K. Agrawal, J. - The two short but interesting questions that arise for consideration in this petition under Section 482 of the CrPC are:

1. Whether any jurisdictional court exercising jurisdiction under Section 125(3) of the CrPC for recovery of amount due to a wife can pass an order of confinement of a defaulter husband for a period of more than one month in one stretch?

2. Whether the said court is empowered to direct the husband to undergo "rigorous" imprisonment under Section 125(3) of the CrPC for non-payment of maintenance

2. The aforesaid twin questions arise on the following factual backdrop: -

2.1) The petitioner herein is husband of respondent No.1 and father of respondent No.2, against whom order dated 29-6-2015 was passed in Miscellaneous Criminal Case No.3/2013 directing payment of maintenance amount being Rs. 2,000/- per month to respondent No.1 and Rs. 1,500/- per month to respondent No.2, but he defaulted in making payment of the said maintenance amount pursuant to which an application under Section 125(3) of the CrPC was filed by the respondents. On 18-7-2018, the petitioner was sent to jail to suffer imprisonment of one month as provided in the provisions contained under Section 125(3) of the CrPC and after completion of that mandatory period of one month, he was released from jail, but thereafter, again he failed to make payment of arrears of the maintenance amount due to which he was again arrested on 19-2-2019 and this time, he was sent to jail to undergo imprisonment of one year under Section 125(3) of the CrPC and that too "rigorous" imprisonment.

2.2) Questioning the impugned order dated 19-2-2019 passed by the learned Judge, Family Court, Jashpur, this criminal miscellaneous petition under Section 482 of the CrPC has been preferred by the petitioner.

3. Mr. Alok Kumar Pandey, learned counsel appearing for the petitioner, would submit that the learned Judge, Family Court is absolutely unjustified in imposing rigorous imprisonment of one year upon the petitioner. The provision contained under Section 125 (3) of the CrPC clearly enunciates that a person so accused for non-payment of maintenance amount cannot be sentenced for imprisonment of more than one month in one go, therefore, sentencing the petitioner for imprisonment of one year under Section 125(3) of the CrPC is totally unauthorized and lies beyond the jurisdiction of the learned Judge of the Family Court who has gravely erred and misdirected himself in exercising its jurisdiction by sentencing the petitioner for imprisonment of one year. The petitioner is in jail since 19-2-2019 and has suffered imprisonment for a period of eight months so far. He would further submit that the sentence cannot also be rigorous, but it can only be a simple sentence for a period of one month, as such, the order impugned deserves to be set aside.

4. Mr. J.K. Saxena, learned counsel appearing for the respondents, would support the impugned order.

5. Mr. Hari Agrawal, learned Advocate assisting the Court as amicus curiae, would submit that the Supreme Court in the matter of Shahada Khatoon and others v. Amjad Ali and others, 1999 5 SCC 672 has held that under Section 125(3) of the CrPC, the jurisdictional Court is only competent to impose imprisonment for a term which may extend to one month or until the payment, if sooner made and this power of the Court trying the application under Section 125(3) cannot be enlarged and sentence cannot be imposed for a period of more than one month. He would further submit that in the light of the judgment rendered by the Kerala High Court in the matter of MoideenKutty Kunhankutty Haji v. State of Kerala, 2008 CrLJ 3402 , sentence to be awarded under Section 125(3) of the CrPC cannot be rigorous.

6. I have heard learned counsel for the parties and amicus curiae and considered their rival submissions made herein-above and also went through the material available on record with utmost circumspection.

7. In order to