JUDGMENT :

SANDEEP MEHTA, J.

1. The learned Sessions Judge, Pali has forwarded a reference to this Court under Section 395 Cr.P.C. for answering the following legal questions:

“(1) WHETHER the Magistrate is precluded to pass a sentence, in an application under section 125(3) Cr.P.C., beyond a period of one month in pursuance of Execution Warrant on a consolidated application made within one year from the date on which the amount became due?

(2) WHETHER the order passed by the Hon'ble Supreme Court in the case of Shahada Khatoon (supra) operates as binding precedent or it qualifies as a mere observation in light of the arguments advanced by the appellant in that case?

(3) WHETHER clarification of the Hon'ble Supreme Court's Order in the case of Shahada Khatoon (supra) by Full Bench of the Kerala High Court in the case of Santosh v. State and by the Hon'ble Bombay High Court in Gorakshnath's case (supra) are required to be read in light of the arguments advanced in the said case?”

2. The matter was registered as D.B. Criminal Reference No. 2/2020. This Court, vide order dated 06.01.2021, directed that a notice of the reference be published in the cause list so as to notify the members of the Bar interested to advance submissions on the questions referred to this Court.

3. In pursuance to the said notice, Sarva Shri Ashok Chhangani, B.S. Sandhu, Dr. RDSS Kharlia, Harshit Bhurani, Harshad Bhadu, Gajendra Singh Rathore, Amit Kumar Purohit, Vivek Mathur, Arpit Gupta and Ms. Durga Kanwar Rathore have appeared to assist the Court on the questions posed/raised by the Referral Court for being answered by virtue of Section 395 Cr.P.C. The issues involved in the reference revolve around interpretation of Section 125 (3) Cr.P.C. which reads as below:—

“Section 125(3) : - If any person so ordered fails without sufficient cause to comply with the order, any such 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's allowances for the maintenance or the interim maintenance 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:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.”

4. As the crux of the controversy revolves around the Supreme Court Judgment in the case of Shahada Khatoon v. Amjad Ali reported in 1999 Cri LJ 5060, it would be fruitful to reproduce the said Judgment for the sake of ready reference:

“1. The short question that arises for consideration is whether the learned single Judge of the Patna High Court correctly interpreted Sub-section (3) of Section 125 of the 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 Section 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