The maximum imprisonment for each default in payment of maintenance under Section 125(3) of the Cr.P.C. is one month.

ANITA CHAUDHRY, J.

1. Petitioner has challenged the order dated 24.09.2013 passed by the Family Court, Sonipat, who had sentenced the judgment debtor/husband to undergo 11 months imprisonment for his failure to pay the maintenance amount.

2. A petition filed under Section 125 Cr.P.C. was allowed. There were arrears over Rs.1,00,000/. An execution petition was filed. The husband expressed his inability to pay the amount. The amount due pertained to the period 17.07.2010 to 17.01.2013 i.e. for 30 months. The Family Court relying upon judgment in the case of Kashmir Singh versus Kartar Koul, reported as 1988(1) RLW, 210 sentenced the husband to undergo imprisonment for a period of 11 months.

3. Notice was given to respondent No.2, she had failed to appear.

4. The counsel for the petitioner contends that in view of the judgment of the Apex Court passed in the case of Shahad Khatoon & others versus Amjad Ali & others, reported as 2000(1) Crimes 12, the husband could not be sentenced for a period longer than one month.

5. An important question has been raised in this revision.

To examine the same it is necessary to refer to the provisions.

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

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 [allowance 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."

6. In Shahad Khatoon's case (supra) the question raised was whether on account of nonpayment of maintenance, the Magistrate would be entitled to impose a sentence on the husband and whether he could be kept in custody until the payment is made. The Apex Court held that the view was not acceptable and the language of Section 125(3) Cr.P.C. was clear and the power of the Magistrate could not be enlarged. The concluding lines of the judgment are as under:

“.......This power of the Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month, for breach of noncompliance 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. In that view of the matter the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. The appeal accordingly fails and is dismissed.”

7. In Sundaran Vs. Sumathi 2006 (3) KLT 725 it had been contended before the Court that irrespective of the number of defaults that are committed in paying each month's maintenance, there is a cap of one month on the total period of imprisonment that can be

imposed and therefore, the sentence ordered by the Magistrate for more than one month was illegal. The contention was rejected and it was answered by the Court as follows:

“8. I have carefully gone through each sentence in the judgment extracted above. It is impossible to deduce the conclusion which the learned counsel for the petitioner wants this court to accept from any sentence of the judgment or th