In a significant judgment, the Rajasthan High Court has held that a Magistrate is empowered under Section 125 of CrPC to pass separate sentences over non-compliance of its order granting maintenance, and that such sentence may be of upto one-month imprisonment each for every month’s default.
” W e have no hesitation in holding that where the defaulter repeatedly breaches the order of maintenance under Section 125 Cr.P.C., the Court would be acting well within its jurisdiction by issuing separate warrants for recovery of each month’s dues and sentence the defaulter to separate terms of imprisonment of upto one month each for every month’s default, ” observed a Division Bench of Justices Sandeep Mehta and Manoj Kumar Garg.
It has however clarified that the only restriction would be that the recovery application shall not be entertained for dues beyond previous 12 months.
The order stated,
“That the claimant/claimants would be entitled to file a consolidated application for recovery of previous 12 months dues. The consolidated application shall be treated as 12 individual claims for recovery of monthly allowances of previous 12 months.
the Court will deal with the application in 12 separate compartments and shall issue separate warrants of recovery of every month’s dues, subject to the condition that the application shall not be entertained for maintenance dues beyond a period of 12 months.
In the event of nonpayment/non-recovery of the maintenance, the Court may pass separate sentences upon the defaulter extending to one month’s imprisonment for each default.”
The Court further clarified that in cases where, no order of interim maintenance has been passed and the Court, while finally deciding the application for maintenance, orders that the maintenance shall be payable from the date of filing of the application, the claimant may file an application for recovery of the accrued amount and such application shall be considered to be within time if filed within 12 months from the date of the order.
The development comes in a criminal reference made by under Section 395 CrPC by the Sessions Court on the sentencing of the defaulter under Section 125(3) CrPC.
Findings
A question before the Bench was whether the observations made by the Supreme Court in Shahada Khatoon & Ors. v. Amjad Ali & Ors (1999) operates as binding precedent. In this case it was held that by no stretch of imagination the Magistrate can be permitted to impose sentence for more than one month. It was further held that 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.
The Bench opined that the above judgment does not stipulate that the Magistrate/Court cannot entertain a consolidated application for multiple defaults or that separate sentences of imprisonment cannot be passed on the basis of a single application for recovery of multiple monthly installments of maintenance.
“Even in Shahada Khatoon (supra) all that has been laid down is that the Magistrate has no power to impose sentence beyond one month for one default. However, in cases of multiple defaults, it has been clearly stipulated that for the next default, the wife can approach the Magistrate again for similar relief, ” it observed.
While holding thus, the Bench agreed with the view taken by the Larger Bench of the Gujarat High Court in Suo Motu v. State of Gujarat (2009), where it was iterated that limitation on power of the Magistrate to impose sentence upto a maximum of one month is relatable to each month of default in payment of maintenance and that subject to the limitation prescribed in proviso to subsection (3) of section 125, it is open for the Magistrate to impose sentence upto a maximum of one month for each month of default and that a composite order of this nature can be passed by the Magistrate.
Finally, it was held:
“Every single breach of the monthly maintenance order gives rise to a distinct cause of action calling for issuance of a warrant for levying of the amount and a discretion is given to the Magistrate that in the event of non-payment, the person ordered may be sentenced to imprisonment for a term which may extend to one month for each month’s default.”
The Bench added,
“The clear intention of the legislature is that as the order of maintenance is stipulated to provide maintenance on a monthly basis, every breach thereof is an infringement for which a separate warrant for levying fine is to be issued and in addition thereto, the person so ordered can be sentenced to imprisonment for a term which may extend to one month concurring with every breach.”
It is also clarified,
“The application for recovery of the maintenance amount can be filed within a period of 12 months from the date it becomes due. The section does not provide that the claimant must file separate applications for recovery of each month’s allowance.”
Before parting, the Bench noted that the language of Section 125 CrPC is very restrictive and complicates the procedure of recovery of maintenance putting the destitute claimants to face unnecessary hurdles and undergo a cumbersome procedure of filing fresh applications, getting the notices thereof served upon the defaulter and thereby delaying the process of recovery.
Therefore, it recommended the appropriate Government should consider suitable amendments in Section 125 Cr.P.C. so that the procedure of recovery can be simplified.
“In the meantime, as an interim measure and in order to simplify the procedure and to avoid unnecessary delays, we hereby direct all the Magistrates/ Family Courts across the State of Rajasthan seized of the applications under Section 125 Cr.P.C., that after passing of the order, the Court shall facilitate the claimant to move an application for recovery of maintenance amount on the same day when the application is decided. The notice of the application shall be served on the defaulter on the date of the decision and consequently, he/she shall be under an obligation to deposit the maintenance amount by the particular date to be stipulated failing which, the Court may initiate the procedure of recovery in terms of Section 125(3) Cr.P.C., ” the Court ordered.
Case Title: In Re A Ref. U/s 395 Cr.P.C. By District And Sessions Judge, Pali v. Unknown
Case No: D.B. Criminal Reference No: 02/2020
