AKIL KURESHI, J. In this reference, following question has been referred to the Full Bench :

"In the light of the decision of the Supreme Court in the case of Shahada Khatoon & Ors. v. Amjad Ali & Ors., 1999 (5) SCC 672, when a person is ordered to pay maintenance under sub-sec. (1) of Sec. 125 of the Code of Criminal Procedure, 1973 fails without sufficient cause to comply with such order, whether the learned Magistrate, in exercise of powers under sub-sec. (3) of Sec. 125 is empowered to sentence such person to imprisonment for a term exceeding one month."

2. Factual background leading to the question is as follows :

Special Criminal Application No. 897 of 2008 has been filed by one Rama Muru Pariya, through jail against the judgment and order dated 15th March, 2008 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Khambhalia, Dist. Jamnagar in Criminal Revision Application No. 141 of 2007. By the said decision, the learned Judge was pleased to modify the order dated 26-11-2007 passed by the learned Judicial Magistrate, First Class. Khambhalia, in Misc. Criminal Application No. 127 of 2006.

3. Wife of the applicant and his minor children were granted maintenance under Sec. 125 of the Criminal Procedure Code by the Judicial Magistrate at the rate of Rs. 200 for the wife and Rs. 250/- each for two children, thus totalling to Rs. 700 per month. Since, the applicant did not pay the maintenance regularly, his wife and children filed Misc. Criminal Application No. 126 of 2006 before the learned Magistrate seeking recovery of accumulated outstanding amount of Rs. 28,000/- for the period between 7-6-2002 and 6-8-2005 under Sec. 125(3) of the Criminal Procedure Code. The said application was filed on 1 July, 2006. Thereafter, another application being Misc. Criminal Application No. 127 of 2006 was also filed on 1-7-2006 seeking recovery of" Rs. 7,700/- for the period between 7-8-2005 to 7-6-2006. For a total unpaid maintenance of Rs. 35,700/- for a period of 49 months, the learned Magistrate issued warrant against the husband. Eventually, for non-payment of the said amount, he ordered that the husband shall serve rigourous imprisonment for a period of 980 days.

4. Against the said order of the learned Judicial Magistrate, First Class, the husband preferred Revision Application before the Sessions Court which came to be disposed of by the judgment dated 15-3-2008. The learned Judge, though held that the Magistrate could have awarded sentence in excess of one month, concluded that the sentence of 20 days for each month of default was excessive and reduced the same to 15 days' sentence for each month of default.

5. The husband approached this Court through jail and requested for reduction in sentence and for his release from jail.

6. While dealing with his Special Criminal Application, learned single Judge of this Court noticed two cont1icting views of two learned Judges on the question whether under sub-sec. (3) of Sec. 125 of the Criminal Procedure Code.Magistrate can impose sentence in excess of one month. Reference was made to the decision of the Apex Court in the case of Shahada Khatoon v. Amjad Ali, 1999 (5) SCC 672 wherein the Apex Court observed that "the language of sub-sec. (3) of Sec. 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."

Learned single Judge making reference noticed that in the case of Smt.Kalpana Jayeshkumar Thakkar v. State of Gujarat, rendered in Criminal Revision Application No. 858 of 2004, learned single Judge of this Court had held t

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