Antony Dominic, J. :

1. Section 125 of the Cr.P.C. provides for order for maintenance of wives, children and parents. Sub-section (3) of section 125 provides that if any person ordered to pay maintenance fails without sufficient cause to comply with the order, the 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 sentence such person, for the whole, or any part of each month allowance and expenses 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. The first proviso to this sub-section provides that no warrant shall be issued for the recovery of any amount due under section 125 (3), unless application is made to the court to levy such amount within a period of one year from the date on which the amount became due.

2. The consequences that will visit on a husband who does not pay maintenance to the wife in full or part, despite a warrant issued by a Magistrate calling upon him to pay the dues, came up for consideration before this Court in Sundaran v. Sumathi [2006 (3) KLT 725]. In that case, relying on the judgment of the Apex Court in Shahada Khatoon v. Amjad Ali [2000(1) KLT 696 (SC)] : (1999 AIR SCW 4880), it was contended that irrespective of the number of defaults that are committed in paying each month maintenance, in section 125(3) there is a cap of one month on the total period of imprisonment that can be imposed and that therefore, the sentence of imprisonment ordered by a Magistrate for more than one month is illegal. These contentions were answered by the learned Judge thus:

5. The counsel argues that the Supreme Court in Shahada case (supra) has laid down the proposition that whatever be the number of months of default, a defaulter can be sentenced to imprisonment only for one month if such complaint about breach in respect of plurality of months is made in one petition.

6. On the face of it the contention appears to me to be illogical, irrational and unreasonable. The statutory provisions under S.125(3) Cr.P.C make it very clear that one month imprisonment is the maximum imprisonment for each month default. If that be so, merely because the destitute lady/child/parent has come to the Court to complain about default in respect of the amount due for more months than one, the defaulter cannot obviously claim immunity or any advantage.

7. The policy of law cannot be to compel such claimants to come to Court with separate petitions for each month default. That would be a totally unreasonable manner of approaching the question. I requested the learned counsel for the petitioner to take me through the judgment in Shahada Khatoon in detail to find out whether any such proposition emerges from the decision of the Supreme Court. It is a very short judgment. I extract the entire judgment below:

The short question that arises for consideration is whether the learned single Judge of the Patna High Court correctly interpreted sub-s.(3) of S.125 of Cr.P.C. by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned counsel for the appellants contends that the liability of the husband arising out of an order passed under S.125 to make payment of maintenance is a continuing one and on account of non-payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. We are unable to accept this contention of the learned counsel for the appellants. The language of sub-s. (3) of S.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.

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