Gajanan S/O Atmaram Wankhede vs Panchfula @ Karuna Gajanan ...
2022 Latest Caselaw 12033 Bom

                                                 1                     15 cr. wp 150.22.odt..odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR.
                 CRIMINAL WRIT PETITION NO.150 OF 2022
                                Gajanan s/o Atmaram Wankhede
                                             .Vs.
                    Sau. Panchfula @ Karuna Gajanan Wankhede and another
_______________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
                            Mr S.M. Awachar, Advocate for the petitioner.
                            Ms Kirti Deshpande, Advocate (appointed) as amicus curiae
                                  CORAM : G.A. SANAP, J.

DATE : NOVEMBER 23 , 2022.

The record reveals that the applicant has been released on bail by this Court. The monthly maintenance awarded is Rs.5,500/- per month (i.e. Rs.3,000/- per month for wife and Rs.2,500/- per month for daughter).

2. I have heard the learned advocates for the parties.

3. Learned advocate for the applicant relying upon the decision in the case of Shahada Khatoon and Ors. Vs. Amjad Ali and Ors. reported in 1999 CriLJ 5060 submitted that under Section 125(3) of the Cr.P.C. learned Magistrate has no jurisdiction to award imprisonment exceeding one 2 15 cr. wp 150.22.odt..odt

month. It is submitted that in this case, the applicant has been awarded 12 months' simple imprisonment for non-payment of arrears of maintenance for 64 months. Learned Advocate submitted that this order is illegal and therefore, required to be interfered with.

4. Learned Advocate appointed to represent the non-applicants has relied upon the decision rendered by Division Bench of this Court in the case of Gorakshnath Khandu Bagal Vs. State of Maharashtra and others reported in 2005 Cri. L.J. 3158 and submitted that the learned Magistrate has power to award sentence of one month for each default. Learned Advocate took me from the judgment and submitted that the decision in the case of Shahada Khatoon and Ors. (supra) has been considered and the Division Bench has held that the order awarding 12 months sentence for default of 12 months maintenance amount could not be said to be illegal.

5. In view of above, one opportunity is required to be granted to the applicant to make statement before the Court as to whether he is ready to make payment or part payment of the 3 15 cr. wp 150.22.odt..odt

arrears of maintenance amount. The applicant was asked about this when he was produced before the learned Magistrate, but he flatly refused to pay the arrears of maintenance for a period of 64 months.

6. It is made to clear that the matter is adjourned only for making the statement, otherwise the issue is squarely covered by the Division Bench judgment of Bombay High Court in the case of Gorakshnath Khandu Bagal (supra).

7. Stand over to 30.11.2022.

(G. A. SANAP, J.)

manisha

Signed By:MANISHA ALOK SHEWALE

Signing Date:24.11.2022 18:05