Mohd. Aarif Pathan S/O Ibrahim ... vs State Of Maharashtra Through ...
2017 Latest Caselaw 6765 Bom

                                              1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR

                    CRIMINAL WRIT PETITION NO.264 OF 2015.

   PETITIONER:              Mohd.Aarif Pathan s/o Ibrahim Pathan,
                           aged about 36 years, Occu: Nil, R/o Plot
                           No.356, Masjid Road, Babulban, Garoba
                           Maidan, Nagpur.

                                            : VERSUS :

   RESPONDENT:    1.   State of Maharashtra,
                       through Government Pleader, 
                       High Court, Nagpur Bench, Nagpur.'

                             2. Tabassum Misa Begum w/o Mohd.
                                Aarif Pathan, aged about 28 years,
                                Occu: Household.

                               3. Ku.Shifa Kashish d/o Mohd.Arif
                                     Pathan, aged about 3 years, through
                                     her natural guardian mother Petitioner
                                     No.2.
                                     Both 2 and 3 resident of C/o Abdul
                                     Salam Leader, Plot No.9, Rajapueth, 
                                     Hudkeshwar Road, Nagpur.
   -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
   Mr.M.A.Sable, Advocate for the petitioner.
   Mrs.S.S.Jachak, Additional Public Prosecutor for the State.
   Mr.Mohd.Shair, Advocate for respondent nos.2 and 3.
   =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                                       CORAM:   P.N.DESHMUKH, J.

                                                       DATED:    4th SEPTEMBER, 2017.

   ORAL JUDGMENT:

1. Heard learned counsel for the petitioner and learned

Additional Public Prosecutor for the respondent/State.

2. Challenge in this petition is to order dated 29 th December,

2014 passed by learned Judge, Family Court Nagpur below Exh.1 in

Petition No.ER 341 of 2014, thereby sentencing the petitioner to suffer

Simple Imprisonment for 150 days in default of arrears of maintenance

amount.

3. Learned counsel for the petitioner submitted that order

passed is grossly in disregard to the provisions of Sub-section 3 of

Section 125 of Code of Criminal Procedure which provides that period

of sentence of 30 days only can be imposed for non-payment of arrears

of maintenance. Learned counsel in support of above submissions has

relied in the case of Shahada Khatton and ors. ..vs.. Amjad Ali and

ors. reported in (1999)5 SCC 672.

4. Learned Additional Public Prosecutor has fairly conceded fact

of statutory provisions of Sub Section 3 of Section 125 of Code of

Criminal Procedure contending that as per the provisions as aforesaid

the Magistrate has power for imposing imprisonment for a term which

may extend to one month or until the payment, if sooner made and as

such, has not seriously opposed the petition. In the case of Shahada

Khatoon (supra) a short question that arose for consideration was

whether under sub-section 3 of Section 125 of Code of Criminal

Procedure Magistrate can direct sentence of imprisonment for a term

which may extend to one month or until the payment, if sooner made.

The submissions advanced were to the effect that the liability of the

husband arising out of an order passed under Section 125 of Code of

Criminal Procedure to make payment of maintenance is a continuing

one and on account of non-payment, there has been a breach of order

and therefore the Magistrate would be entitled to impose sentence on

such a person continuing him in custody until payment is made. The

submissions advanced thus, were to keep the person in custody until the

payment of maintenance is made. However, the submissions advanced

were not found to be convincing and having considered the language of

Sub section 3 of Section 125 of the Code of Criminal Procedure it is

noted that said provision circumscribes the power of Magistrate to

impose imprisonment for a term which may extend to one month or

until the payment, if sooner made. It is therefore found that under the

provisions of Sub-section 3 of Section 125 of Cr.P.Code a term of

imprisonment which can be awarded is for a period of one month or if

payment is made prior to said period, then till the payment is made.

This power of the Magistrate cannot be enlarged and therefore, the only

remedy which would be available is to approach Magistrate after expiry

of one month, for breach or for non-compliance of the order of the

Magistrate. However, by no stretch of imagination Magistrate can be

permitted to impose sentence for more than one month.

5. In the present case, the order impugned reveals that

petitioner is imposed with simple imprisonment and is directed to

undergo sentence of 150 days which is, therefore, totally contrary to the

statutory provisions as aforesaid. In that view of the matter, petition

succeeds. Same is allowed. Impugned order dated 29th December, 2014

passed by learned Family Court, Nagpur is quashed and set aside. Rule

is made absolute in above terms with no order as to costs.

JUDGE chute