Telangana High Court
Vunnam Srinivasa Rao vs State Of Telangana on 7 January, 2025
Author: Juvvadi Sridevi
Bench: Juvvadi Sridevi
HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL PETITION No.16134 of 2024
ORDER:
Challenging the order dated 25.11.2024 passed in
Crl.M.P.No.6 of 2024 in M.C.No.97 of 2019 by the learned
Family Court Judge-cum-IV Additional District and Sessions
Judge, Khammam (for short 'trial Court'), this criminal petition
is filed. By the impugned order, the petitioner was directed to
undergo imprisonment for a period of six (06) months or till the
payment of entire arrears of maintenance, whichever is earlier.
2. Heard Sri A.Tarun Ram, learned counsel representing
Sri G.Ravi Chandrasekhar, learned counsel for the petitioner and
Sri Jithender Rao Veeramalla, learned Additional Public
Prosecutor appearing for the State and perused the record.
3. Brief facts of the case are that the 2nd respondent is the
wife of petitioner herein. Respondent No.2 filed M.C.No.97 of
2019 before the trial Court. By an order, dated 30.04.2024, the
learned Family Court Judge has granted maintenance of
Rs.12,000/- per month to respondent No.2, from the date of
petition. Questioning the said order, the petitioner approached
this Court by filing Criminal Revision Case No.727 of 2024 and
this Court, vide order, dated 04.07.2024 has suspended the
order, dated 30.04.2024 passed by the learned Family Court
Judge, subject to the petitioner paying arrears @ Rs.8,000/- per
month and also continuing to pay maintenance amount @
Rs.8,000/- per month to respondent No.2. Even after passing
the above orders by this Court, when the petitioner failed to
comply with the same, the 2nd respondent filed an application
under Section 128 of Cr.P.C. seeking for Enforcement of Order
of Maintenance. After considering the material on record, the
learned Family Court Judge has issued arrest warrant against the
petitioner, directing him to undergo imprisonment for a period
of six (06) months or till the payment of arrears of maintenance,
whichever is earlier. Challenging the same, the present Criminal
Petition is filed.
4. Learned counsel for petitioner submits that the petitioner is
languishing in jail since 25.11.2024. As per Section 125(3) of
Cr.P.C., only one month imprisonment was prescribed, but, the
learned Family Court Judge has erroneously directed the
petitioner to undergo imprisonment for a period of six (06)
months for non-compliance of the order in depositing the
maintenance. In support of his contention, learned counsel for
petitioner relied on the order, dated 14.08.2018 passed by this
Court in Criminal Petition No.7766 of 2018, wherein, the
judgment of Hon'ble Supreme Court in Sahada Khatoon and
others v. Amjad Ali and others 1, is referred and in the said
judgment, it is held as follows:
"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 contends 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 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
1999 SCC (Crl.) 1029
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."
Hence, he prayed to set aside the impugned order.
5. For the sake of convenience, Section 125(3) of Cr.P.C. is
extracted hereunder:
(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 allowances
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.
6. A careful study of the above provision would show that for
every breach of the order, the Court can 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
months allowances for the maintenance or the interim
maintenance and expenses of proceedings, 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. So the maximum punishment for every
breach of the order that can be passed is up to one month.
7. In the instant case, the 2nd respondent has filed an
application under Section 128 of Cr.P.C. seeking for
Enforcement of Order of Maintenance for recovery of arrears of
maintenance from 11.11.2019 to 11.07.2024. As per the statute
provided under Section 125(3) of Cr.P.C., there can only be one
imprisonment and the maximum imprisonment would be one
month. In case, the petitioner chooses to file an application
under Section 125(3) of the Code, on every successive month
failure to get maintenance, she may get successive orders of
imprisonment if the person against whom the warrant is issued
fails to make the payment. But if the person chooses to make an
application after several months, then again she will be able to
get an order of imprisonment on failure to make the payment
which will be only a maximum imprisonment of one month.
8. In view of the above precedential jurisprudence on the
issue, the order of the learned Family Court Judge directing the
imprisonment of the petitioner/respondent for the period
exceeding one month is illegal and untenable.
9. Accordingly, this Criminal Petition is allowed and the
impugned order, dated 25.11.2024 passed in Crl.M.P.No.6 of
2024 in M.C.No.97 of 2019 by the learned Family Court Judge-
cum-IV Additional District and Sessions Judge, Khammam, is
hereby set aside and the petitioner is ordered to be released
forthwith.
Pending miscellaneous applications, if any, shall stand
closed.
____________________
JUVVADI SRIDEVI, J
Date: 07.01.2025
Note: C.C. by tomorrow.
B/o.
rev
