The court cannot pass an order of confinement for a period of more than one month for each month's default in payment of maintenance under Section 125, Cr. P. C.

( 1 ) HEARD learned counsel for applicant, Sri Shankar Suan, learned counsel for the opposite party, and also learned A. G. A. , for the State.

( 2 ) ON the last date, while admitting this application, a clear direction was given to the State counsel that he shall also prepare himself on the question whether any court deciding an application for recovery of the amount due under Section 125, Cr. P. C. to the wife from the delinquent husband can pass an order of his confinement for a period of one year compositively or any other consolidated period.

( 3 ) A perusal of Section 125 (3), Cr. P. C. very clearly indicates that no such order can be passed by any court, be it Family Court or a Court of a Judicial Magistrate. The Courts are entitled to pass an order against any delinquent husband who has not made the payment and allowed the wife to lead a destitute life, in the absence of such payment, to a confinement or imprisonment for a term which may extend to one month or until payment if sooner made. The earlier portion of this sub-section clearly shows that this confinement of imprisonment will be against each months default. Section 125 (3), Cr. P. C. is quoted below. " (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 months allowance 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. "

( 4 ) FROM these it is clearly available that the person can be kept under confinement for each months default and the confinement can be only for a period of one month. The subsequent part "until payment if sooner made" further clarifies 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. The purpose behind this enactment of provision for confinement is to put an end to the sufferings of the wife by compelling the husband to pay the maintenance amount. The Court cannot keep him in confinement any further beyond a period of one month by one stroke of pen in the present case an application was moved by the wife for the recovery of the arrear amount which appears to be for several months. The Family Judge has passed a consolidated order for 12 months confinement of the applicant, i. e. for the total period of default. The applicant is the husband, who has filed to make payment of the maintenance amount allowed not only to the wife but also to his children. He has failed to discharge this obligation. The Court is vested with his extensive power with his interest in mind, i. e. compelling the husband to discharge his obligation imposed upon him by an order of a competent Court.

( 5 ) IN view of the discussions made above, the order of the learned Family Judge is wholly unsustainable. I am fortified in my view by a latest decision of the Apex Court reported in (1999) 5 SCC 672 : (1999 AIR SCW 4880) (Shahada Khatoon v. Amjad Ali ). The Apex Court has g