ORDER

This Criminal Petition is filed under Section 482 of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) to set aside the order dated 01.05.2024 passed in Crl.M.P.No.199 of 2024 in DVC.No.109 of 2012 by the learned III Metropolitan Magistrate (Traffic Mobile Court), Hyderabad.

2. The brief facts of the case are that respondent No.2 filed a petition before the trial Court, vide Crl.M.P.No.199 of 2024, under Section 125 (3) of Cr.P.C., praying to direct the petitioner to pay an amount of Rs.70,000/- to respondent No.2 from November, 2022 to December 2023 for a period of 14 months. The trial Court vide order dated 01.05.2024 issued Non-Bailable Warrant against the petitioner. Aggrieved by the said order, the petitioner filed the present criminal petition.

3. Heard Sri M. Rathan singh, learned counsel appearing on behalf of the petitioner as well as Sri S. Ganesh, learned Assistant Public Prosecutor appearing on behalf of respondent No.1-State and Sri G. Anil Kumar, learned counsel appearing on behalf of respondent No.2.

4. Learned counsel for the petitioner submitted that the trial Court erred in issuing the Non-Bailable Warrant, as it is the settled principles of law from the proviso of Section 125 (3) of Cr.P.C., that no application can be moved for recovery of the amount for more than 11 months. In support of his submission, learned counsel for the petitioner relied on the Judgment of the Bombay High Court in W.P.(ST).No.2435 of 2024, wherein in paragraph No.23, it is held as under:

“23. Now coming to the facts of the present case, upon query by this Court, learned Counsel for respondent No.2 submitted that the issuance of warrant pursuant to the application dated 27th July, 2023 annexed at Page 57 of the Petition. Perusal of the application indicates that the pleading is that there is default of 59 months and the intermittent payments made by the Petitioner were set out.

Considering the proviso to Section 125 (3) of Cr.P.C., it was incumbent upon the Metropolitan Magistrate to first consider whether the application has been filed in respect of default of monthly maintenance for period of 12 months preceding the application, which was not done. The impugned order does not indicate any finding on the aspect of period of default and it is only observed that there is default of 47 months when the application states that there is default of 59 months. The Petitioner has been sentenced to simple imprisonment for period of 47 months for default of 47 months without noticing the outer limit on power of the Magistrate to impose sentence of imprisonment which is set out in the proviso to sub section (3) of Section 125.”

5. On the other hand, learned counsel appearing on behalf of respondent No.2 submitted that there is no bar to claim the maintenance from November 2022 to December, 2023. In support of his submission, learned counsel relied upon the Judgment of the Shahada Khatoon and Ors vs. Amjad Ali and Ors 1, wherein it is held as under:

“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 contended 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 the learned counsel for the appellants. The language of Sub-Section (3) of Section 125 is quite clear and it circumscribes the 1 (2000) 1 ALD (Crl) 305 power of the Magistrate to impose imprisonment