Maintenance--Non-Payment of Arrears--Imprisonment of husband can extend to only one month--No composite confinement can be directed by Court

JUDGMENT

Mrs. Anita Chaudhry, J.:- The petitioner has assailed the order dated 03.02.2018, passed by the Family Court, Gurugram whereby petitioner was sentenced to undergo civil imprisonment from 01.03.2015 to 13.12.2016 and for another period of six months from 14.12.2016 for non-payment of arrears of maintenance of Rs. 1,10,000/-.

2. The counsel for the petitioner contends that the Family Court in utter disregard of the judgment rendered in Shahada Khatoon and others Vs. Amzad Ali and others 1999(II) OLR (SC) 333 has sentenced him to imprisonment for more than a month. He urges that a Magistrate cannot impose imprisonment for a term which can extend to one month in case of non-payment of maintenance and the language of Sub-Section 3 of Section 125 Cr.P.C. is quite clear and the power given to the Court does not get enlarged and if there was a breach or non-compliance of the order, the wife can approach the Magistrate again for the same relief.

3. The counsel representing the respondent urges that the petitioner has not cleared the arrears and there are still outstanding.

4. The point for determination is whether the Family Court could send the petitioner to civil imprisonment for a period longer than one month in default of payment of arrears of maintenance and whether the order was legally sustainable.

5. It is necessary now 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 non-payment 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 had 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 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. 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 ca