IMPORTANT POINT
Imprisonment for non-payment of maintenance under Section 125(3) of the Cr.P.C. serves as a mode of enforcement and does not discharge the underlying liability; the court can impose sentences for each month of default, and successive applications for enforcement are valid.

ORDER :

K.K. Ramakrishnan, J.

[PRAYER: Criminal Revision Case filed under Section 397 r/w 401 of Criminal Procedure Code, to set aside the order passed in Crl.M.P.No.91 of 2018, in M.C.No.27 of 2008, dated 05.10.2021, filed by the respondent on the file of the Family Court, Nagercoil.]

The Criminal Revision Case has been filed against the order passed in Crl.M.P.No.91 of 2018 in M.C.No.27 of 2008, dated 05.10.2021 filed by the respondent on the file of the Family Court, Nagercoil.

2. The petitioner who is the husband filed this Criminal Revision Case, challenging the order passed in Crl.M.P.No.91 of 2018, in M.C.No. 27 of 2008, to enforce the arrears of amount.

3. The respondent/wife filed a maintenance petition in M.C.No.27 of 2008, on the file of the learned Chief Judicial Magistrate, Nagercoil, and the same was allowed by order dated 05.03.2009, granting a sum of Rs.3,000/- as monthly maintenance. Thereafter, the petitioner did not pay any maintenance amount as per the order dated 05.03.2009. Therefore, the respondent herein filed a petition in Crl.M.P.No.579 of 2009 in M.C.No.27 of 2008, for enforcement of order of maintenance. However, the petitioner herein did not make any payment for maintenance. Thereafter, the respondent herein filed C.M.P.No.91 of 2018 in M.C.No. 27 of 2008 and as per the order of the learned Judge, Family Court, Nagercoil, the petitioner herein was produced on 05.10.2023, for execution of N.B.W, issued by the Court below. On that day, the learned Judge, Family Court, Nagercoil, convicted the petitioner and sentenced him to undergo 11 months of Simple Imprisonment under Section 125(3) of Cr.P.C., for his failure to pay the maintenance amount to the respondent as per the order passed under Section 125 of Cr.P.C. Aggrieved over the same, the petitioner herein filed this Criminal Revision Case before this Court.

4. The learned counsel for the petitioner submitted that as per Section 125(B), the learned trial Judge has no jurisdiction to impose 11 month simple imprisonment. He has a jurisdiction only to impose one month of simple imprisonment and the execution petition filed by the respondent for more than a period of one year is not maintainable, for which, he relied on the judgment of the Hon'ble Supreme Court in the case of Shjahada Khatoon and others Vs. Amjad Ali and others reported in 1999 SCC(Crl.) 1029 and in the case of Mehboob Basha Vs. Nannima @ Hajara Bibi and another reported in 2005 (1) law weekly (Crl.) 384, and in the case of R. Rajesh Vs. Kalaiyarasi reported in 2017 (3) MWN (Cr.) 216. On the basis of that, he submitted that imposing imprisonment of 11 months is not in accordance with law and he seeks to allow this Case.

5. The learned counsel for the respondent submitted that the learned trial Judge considering the conduct of the petitioner, passed the impugned order of imposing the sentence of 11 months simple imprisonment and he also stated that the impugned order passed by the Court below was in accordance with law.

6. This Court considered the rival submissions made on either side and perused the materials available in records and also the precedents relied upon by them.

7. The marriage was held between the petitioner and the respondent/wife on 23.05.2004 as per the Hindu Rights and Customs. Due to some disputes between them, the respondent started to live separately from 25.12.2004. Thereafter, in the year of 2007, the petitioner filed a divorce petition in H.M.O.P.No.135 of 2007 before the Subordinate Court, Thoothukudi. During the pendency of the divorce petition, the respondent filed a maintenance case in M.C.No.27 of 2008 under Section 125 of Cr.P.C., before the learned Chief Judicial Magistrate, Nagercoil. The learned Judicial Magistrate, passed the order on 05.03.2009 and awarded a sum of Rs.3,000/- per month to the respondent for monthly maintenance and directed the petitioner to pay the monthly maintenance to the respondent from 25.11.2008 onwards. However, the petitioner did not ma