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[CRLRF-2/2020]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

D.B. CRIMINAL REFERENCE NO.2/2020

In Re A Ref. U/s 395 Cr.P.C. By District And Sessions Judge, Pali.

----Petitioner

Versus

Unknown

----Respondent

Members of the Bar

:

Mr.Ashok Chhangani.

Mr.B.S.Sndhu through VC

Dr.R.D.S.S. Kharlia through VC

Mr.Gajendra Singh

Ms.Durga Kanwar Rathore.

Mr.Amit K. Purohit, through VC

Mr.Harshit Bhurani.

Mr.Harshad Bhadu.

Mr.Vivek Mathur through VC

Mr.Arpit Gupta through VC.

Mr.Anil Joshi, GA-cum-AAG (Incharge).

HON'BLE MR. JUSTICE SANDEEP MEHTA

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

J U D G M E N T

Judgment pronounced on

:::

03

/12/2021

Judgment reserved on

:::

30

/07/2021

BY THE COURT : (PER HON’BLE MEHTA, J.)

Reportable

1.

The learned Sessions Judge, Pali has forwarded a reference

to this Court under Section 395 Cr.P.C. for answering the following

legal questions:

“(1) WHETHER the Magistrate is precluded to pass a

sentence, in an application under section 125(3) Cr.P.C.,

beyond a period of one month in pursuance of Execution

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[CRLRF-2/2020]

Warrant on a consolidated application made within one year

from the date on which the amount became due ?

(2) WHETHER the order passed by the Hon’ble Supreme

Court in the case of Shahada Khatoon (supra) operates as

binding precedent or it qualifies as a mere observation in

light of the arguments advanced by the appellant in that

case ?

(3) WHETHER clarification of the Hon’ble Supreme Court’s

Order in the case of Shahada Khatoon (supra) by Full Bench

of the Kerala High Court in the case of Santosh V State and

by the Hon’ble Bombay High Court in Gorakshnath’s case

(supra) are required to be read in light of the arguments

advanced in the said case ?”

2.

The matter was registered as D.B. Criminal Reference

No.2/2020. This Court, vide order dated 06.01.2021, directed that

a notice of the reference be published in the cause list so as to

notify the members of the Bar interested to advance submissions

on the questions referred to this Court.

In pursuance to the said notice, Sarva Shri Ashok

Chhangani, B.S. Sandhu, Dr. RDSS Kharlia, Harshit Bhurani,

Harshad Bhadu, Gajendra Singh Rathore, Amit Kumar Purohit,

Vivek Mathur, Arpit Gupta and Ms. Durga Kanwar Rathore have

appeared to assist the Court on the questions posed/raised by the

Referral Court for being answered by virtue of Section 395 Cr.P.C.

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[CRLRF-2/2020]

The issues involved in the reference revolve around interpretation

of Section 125 (3) Cr.P.C. which reads as below:-

“Section 125(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 month's

allowances 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.

Explanation.- If a husband has contracted

marriage with another woman or keeps a mistress, it

shall be considered to be just ground for his wife's

refusal to live with him.”

3.

As the crux of the controversy revolves around the Supreme

Court Judgment