IMPORTANT POINT
The magistrate can impose a maximum of one month imprisonment for each month of default in maintenance payments under Section 125(3) of the Cr.P.C.

JUDGMENT :

GITA GOPI, J.

1. RULE returnable forthwith. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent-State.

2. By way of this application, the applicant has prayed for quashing and setting aside the order dated 20.03.2024 passed by the learned Principal Judge, Family Court, Jamnagar in Criminal Miscellaneous Application No. 44 of 2024, whereby the revisionist was ordered to suffer rigorous imprisonment for the period of ten months for the arrears of ten months maintenance amount which was in total of Rs.70,000/- and further considering intentional disregard of the order of the Court, 10 days rigorous imprisonment for every month breach, thus 100 days further imprisonment, under Section 125(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘Cr.P.C.’).

3. Learned Advocate for the applicant herein Mr. M.S. Padaliya has drawn the attention of this Court to the Affidavit of the respondent No. 2-the wife, placed on record at Annexure ‘C’. In Paragraph 3 of the said Affidavit, it is stated that the entire amount has been paid to her as per the application of recovery.

4. Learned Advocate for the applicant submitted that an application could be moved before the learned Family Court itself, for quashing and setting aside the order which punishes the applicant for every month for non-payment of maintenance amount, but the order further stipulates ten (10) days rigorous imprisonment for every month’s breach as an additional punishment imposed upon the applicant for 100 days. It was further submitted that the same was required to be challenged as such order is prima-facie bad in law and unreasonable.

5. To assist his submissions, learned Advocate for the applicant has relied upon the following decisions of the Hon’ble Apex Court:

(a) Shahada Khatoon v. Amjad Ali, (1995) 5 SCC 672

(b) Gorakshnath Khandu Bagal v. State of Maharashtra and Others, 2005 Cri. L.J. 3158

(c) The decision of the larger Bench of this Court in the case of Suo Motu v. State of Gujarat, 2010 AIR SCW 622

(d) The decision dated 03.12.2021 of the High Court of Judicature for Rajasthan at Jodhpur in the case of In Ref. U/s. 395 Cr.P.C. by District and Sessions Judge, Pali v. Unknown in D.B. Criminal Reference No. 2/2020

6. Learned Advocate for the respondent No. 2 Mr. F.O. Chariya has submitted that necessary order in accordance with law be passed, stating that the wife has received the total amount as prayed for in the Recovery proceedings and thus, has no objection if the warrant stands cancelled.

7. Learned Additional Public Prosecutor Mr. Hardik Mehta submitted that the impugned order of the learned Principal Judge, Family Court, Jamnagar is to be considered in view of the provision and further submitted that every breach of the maintenance order requires punishment from the Court.

8. Keeping in view the provision of Section 125(3) of Cr.P.C. to the submission advanced, the vital question which falls for consideration is:

“Whether the learned magistrate is empowered to impose sentence beyond the statutory limit as prescribed under Section 125(3) of Cr.P.C.?”

9. Section 125(3) of the Cr.P.C. explains that if any person so ordered fails to comply with the order, without sufficient cause, the Magistrate may for every breach of the order, issue a warrant for levying the amount due. The learned Magistrate shall be empowered to issue warrant for the recovery of the maintenance due, in the manner provided for levying fines, and may also sentence such person for the whole or any part of each month’s allowance to imprisonment for a term which may extend to one month. Every single breach of monthly maintenance order gives rise to a separate cause of action making the Magistrate issue a warrant for levying of the amount. The Magistrate may exercise the discretion to pass an order sentencing imprisonment for a term which may extend to one month for each month’s default.

10. Section 125(3) of Cr.P.C. reads as under: