In cases pertaining to sec.125(3) of Cr.P.C, for breach of payment of maintenance for each month,Court can impose maximum sentence of one month only: P&H HC

Read Order: Bal Raj v. Priya and others 

Tulip Kanth

Chandigarh, November 22,2021: Referring to the decision of the Supreme Court in the case of Shahada Khatoon and others Vs. Amjad Ali and others, the Punjab and Haryana High Court has observed that the defaulter can under no circumstances be ordered to undergo composite civil imprisonment for a period beyond one month irrespective of the fact that the arrears etc. claimed in a single application by the aggrieved party may be for more than one month.

Herein, the revision petition in question had been filed to assail the order passed by the Family Court, Jagadhri in an application moved under Section 125(3) of Cr.P.C. by which the petitioner was ordered to undergo a composite sentence of civil imprisonment for a period of twelve months for default of payment of maintenance allowance of 66 months (w.e.f. May 27,2014 to February 27,2020), amounting to Rs.2,74,000.

The petitioner’s counsel vehemently urged that the Family Court gravely erred while passing the impugned order without appreciating that for default of payment of arrears, no composite sentence could have been ordered. In support, he placed reliance upon the Shahada Khatoon case(Supra) and also submitted that the first three respondents were not even his wife and children. Besides, they were already getting widow and destitute children pension from the Government of Haryana. It was submitted that soon after the passing of the impugned order the petitioner was sentenced to civil imprisonment on March 16,2020. 

On account of the outbreak of the pandemic, he was released on parole but subsequently he was directed by the jail authorities to surrender back, which he did on October 10,2021. Ever since then he was confined in the District Prison at Yamuna Nagar.

Referring to section 125(3) , the Bench of Justice Manjari Nehru Kaul held that for the breach of payment of maintenance for each month, the Court can impose a maximum sentence of one month only, unless of course, if the payment of the arrears is made sooner.

“In Shahada Khatoon’s case (Supra), the Supreme Court while dealing with a similar question held in no uncertain terms that the powers of the Magistrate are restricted and no sentence exceeding the maximum i.e. one month, can be imposed for default, and if at all the default persists even after the expiry of one month the only remedy available to the aggrieved party would be to approach the Magistrate concerned again after the expiry of one month for enforcing her claim of maintenance for sending the delinquent husband to civil imprisonment”, said the Court.

Therefore, the Bench opined that what flows from Shahada Khatoon’s case (supra) is that the defaulter can under no circumstances be ordered to undergo composite civil imprisonment for a period beyond one month irrespective of the fact that the arrears etc. claimed in a single application by the aggrieved party may be for more than one month. 

Thus, the Bench set aside the impugned order dated March 16,2020 being wholly unsustainable and against the settled law and also directed that the petitioner shall be forthwith set at liberty, if not required in any other case.