The power of the Magistrate to impose imprisonment for default in payment of maintenance is limited to a term of one month or until the payment, if sooner made.

H.R. Panwar, J.-By this instant revision petition under Section 397 read with Section 401 CrPC, the petitioner has challenged the order dated 28.01.2003 passed by Judge, Family Court, Jodhpur (for short the trial Court hereinafter) in Criminal Miscellaneous Case No. 140/2001 whereby the trial Court directed the petitioner to pay the arrears of maintenance amounting to Rs. 17,600/-to respondent No. 2, failing which he shall undergo simple imprisonment for 220 days.

2. I have heard learned Counsel for the parties. At the outset, learned Counsel for the petitioner submits that in view of Sub-section (3) of Section 125 CrPC, for default in payment of maintenance, a Magistrate can award sentence only for a period of one month or until payment if sooner made. Learned Counsel appearing for the respondents do not dispute the settled legal position and submit that the maximum sentence of imprisonment can be awarded for a term which may extend to one month or until payment is made.

3. In Shahada Khatoon vs. Amjad Ali, reported in 1999 CrLJ 5060 (SC) the provisions of Sub-section (3) of Section 125 CrPC, came to be considered by the Honble Apex Court. The Apex Court held that the language of Sub-section (3) of Section 125 CrPC, 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 of the order of the Magistrate the wife can approach again to the Magistrate for similar relief . By no stretch of imagination the Magistrate can be permitted to impose sentence for more than one month.

4. In Dilip Kumar vs. Family Court, Gorakhpur, reported in 2000 CrLJ 3893, the Allahabad High Court held that a person who fails to make payment of maintenance amount can be kept under confinement for each months default and the confinement can be only for a period of one month. While considering the subsequent part of Sub-section (3) of Section 125 CrPC "until payment if sooner made", it was further held that the situation to the extent that such a husband can be confined to a period of one month even if the default is of more than a month and he can be allowed to come out of jail if the payment is made earlier at any point of time within this period. This very clearly indicates that if the payment is made within this period on any date his confinement will come to an end. In one stroke no composite confinement can be directed by the Court.

5. In view of the above, I am of the considered opinion that the order impugned deserves to be modified.

6. Consequently, the revision petition is partly allowed. Order impugned is modified to the extent that in default of payment of arrears of maintenance allowance, the petitioner shall undergo one month simple imprisonment.