Telangana High Court
B. Sridhar Goud vs The State Of Telangana on 2 August, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.5563 of 2024
ORDER:
This Criminal Petition is filed under Section 482 of Code
of Criminal Procedure, 1973 (for short 'Cr.P.C.') to set aside
the order dated 01.05.2024 passed in Crl.M.P.No.199 of 2024
in DVC.No.109 of 2012 by the learned III Metropolitan
Magistrate (Traffic Mobile Court), Hyderabad.
2. The brief facts of the case are that respondent No.2 filed
a petition before the trial Court, vide Crl.M.P.No.199 of 2024,
under Section 125 (3) of Cr.P.C., praying to direct the
petitioner to pay an amount of Rs.70,000/- to respondent
No.2 from November, 2022 to December 2023 for a period of
14 months. The trial Court vide order dated 01.05.2024
issued Non-Bailable Warrant against the petitioner. Aggrieved
by the said order, the petitioner filed the present criminal
petition.
3. Heard Sri M. Rathan singh, learned counsel appearing
on behalf of the petitioner as well as Sri S. Ganesh, learned
Assistant Public Prosecutor appearing on behalf of respondent
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No.1-State and Sri G. Anil Kumar, learned counsel appearing
on behalf of respondent No.2.
4. Learned counsel for the petitioner submitted that the
trial Court erred in issuing the Non-Bailable Warrant, as it is
the settled principles of law from the proviso of Section 125 (3)
of Cr.P.C., that no application can be moved for recovery of
the amount for more than 11 months. In support of his
submission, learned counsel for the petitioner relied on the
Judgment of the Bombay High Court in W.P.(ST).No.2435 of
2024, wherein in paragraph No.23, it is held as under:
"23. Now coming to the facts of the present
case, upon query by this Court, learned Counsel for
respondent No.2 submitted that the issuance of
warrant pursuant to the application dated 27th July,
2023 annexed at Page 57 of the Petition. Perusal of
the application indicates that the pleading is that
there is default of 59 months and the intermittent
payments made by the Petitioner were set out.
Considering the proviso to Section 125 (3) of
Cr.P.C., it was incumbent upon the Metropolitan
Magistrate to first consider whether the application
has been filed in respect of default of monthly
maintenance for period of 12 months preceding the
application, which was not done. The impugned
order does not indicate any finding on the aspect of
period of default and it is only observed that there is
default of 47 months when the application states
that there is default of 59 months. The Petitioner
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has been sentenced to simple imprisonment for
period of 47 months for default of 47 months
without noticing the outer limit on power of the
Magistrate to impose sentence of imprisonment
which is set out in the proviso to sub section (3) of
Section 125."
5. On the other hand, learned counsel appearing on behalf
of respondent No.2 submitted that there is no bar to claim the
maintenance from November 2022 to December, 2023. In
support of his submission, learned counsel relied upon the
Judgment of the Shahada Khatoon and Ors vs. Amjad Ali
and Ors 1, wherein it is held as under:
"The short question that arises for consideration
is whether the learned single Judge of the Patna
High Court correctly interpreted Sub-Section (3) of
Section 125 of the Cr.P.C., by directing that the
Magistrate can only sentence for a period of one
month or until payment, if sooner made. The
learned counsel for the appellants contended that
the liability of the husband arising out of an order
passed under Section 125 to make payment of
maintenance is a continuing one and on account of
non-payment there has been a breach of the order
and therefore the Magistrate would be entitled to
impose sentence on such a person continuing him
in custody until payment is made. We are unable to
accept this contention of the learned counsel for the
appellants. The language of Sub-Section (3) of
Section 125 is quite clear and it circumscribes the
(2000) 1 ALD (Crl) 305
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power of the Magistrate to impose imprisonment for
a term which may extend to one month or until the
payment, if sooner made. This power of the
Magistrate cannot be enlarged and therefore, 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. By no stretch of
imagination the Magistrate can be permitted to
impose sentence for more than one month. In that
view of the matter the High Court was fully justified
in passing the impugned order and we see no
infirmity in the said order to be interfered with by
this Court. The appeal accordingly fails and is
dismissed."
6. In the light of the submissions made by both the
learned counsel and a perusal of the material available on
record, it appears that respondent No.2 filed a petition
claiming maintenance for 14 months i.e., from November,
2022 to December 2023. The contention of the learned
counsel for the petitioner is that the trial Court without
considering Section 125 (3) of Cr.P.C., issued Non-Bailable
Warrant to the petitioner.
7. At this stage, it is imperative to note Section 125 (3) of
Cr.P.C., which reads as under:
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125. Order for maintenance of wives, children
and parents. :-
(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
[allowance 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."
8. A bare perusal of Sub Section 3 of Section 125 of
Cr.P.C., empowers the Magistrate for every breach of the order
to issue warrant for levying the amount due and for searching
the person for the whole or any part of each months
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maintenance remaining unpaid leads to imprisonment for a
term which may extend to one month or until payment if
sooner made. Proviso to Sub Section (3) of Section 125
restricts the power of the Magistrate to issue warrant for
recovery of the amount due unless application is made to the
Court to levy such amount within a period of one year from
the date on which it becomes due. Upon holistic reading of
Sub Section (3) of Section 125, it is evident that the same
provides for maximum imprisonment of one month for
maintenance of each month or any part thereof remaining
unpaid, which is applicable for issuance of warrant is required
to be filed within a period of one year from the date it becomes
due.
9. Reverting to the facts of the case on hand, as per
Section 125 (3) of Cr.P.C and as per the law laid down by the
Bombay High Court in W.P.(ST).No.2435 of 2024, this Court
deems it fit and appropriate to set aside the Non-Bailable
Warrant issued against the petitioner. Further, it is clarified
that the quashing of the impugned order does not restrict
respondent No.2 from filing fresh application for issuance of
warrant for non-payment of maintenance.
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10. Accordingly, the criminal petition is allowed and the
docket order dated 01.05.2024 passed in Crl.M.P.No.199 of
2024 in DVC.No.109 of 2012 by the learned III Metropolitan
Magistrate (Traffic Mobile Court), Hyderabad, is hereby set
aside. However, petitioner is directed to surrender before the
trial Court to recall the Non-Bailable Warrant issued against
him. Further, on the same day, the petitioner is directed to
furnish an undertaking to appear before the trial Court as and
when required. Till such surrender of the petitioner, the Non-
Bailable Warrant issued against him, shall not be executed.
Further, respondent No.2 is directed to file a fresh petition
before the trial Court for enforcement of order.
Miscellaneous applications, if any pending, shall also
stand closed.
_____________
K. SUJANA
Date: 02.08.2024
SAI
