IN THE HIGH COURT OF PUNJAB AND HARYANA
CRL. REVISION No.3962 OF 2013
DATE OF DECISION : 25TH FEBRUARY, 2016
State of Haryana & another…….Respondents
CORAM : HON’BLE MRS. JUSTICE ANITA CHAUDHRY
Present : Mr. Rohan Mittal, Advocate for a petitioner.
Ms. Dimple Jain, AAG, Haryana.
None for respondent No.2.
ANITA CHAUDHRY, J. (ORAL)
1. Petitioner has challenged a sequence antiquated 24.09.2013 upheld by a Family Court, Sonipat, who had condemned a visualisation debtor/husband to bear 11 months seizure for his disaster to compensate a upkeep amount.
2. A petition filed underneath Section 125 Cr.P.C. was allowed. There were balance over Rs.1,00,000/-. An execution petition was filed. The father voiced his inability to compensate a amount. The volume due pertained to a generation 17.07.2010 to 17.01.2013 i.e. for 30 months. The Family Court relying on visualisation in a box of Kashmir Singh contra Kartar Koul, reported as 1988(1) RLW, 210 condemned a father to bear seizure for a generation of 11 months.
3. Notice was given to respondent No.2, she had unsuccessful to appear.
4. The warn for a postulant contends that in perspective of a visualisation of a Apex Court upheld in a box of Shahad Khatoon & others contra Amjad Ali & others, reported as 2000(1) Crimes 12, a father could not be condemned for a generation longer than one month.
5. An critical doubt has been lifted in this revision. To inspect a same it is required to impute to a provisions. “Section 125(3) of a Cr.P.C. reads as under:
If any chairman so systematic fails though sufficient means to approve with a order, any such Magistrate may, for any crack of a order, emanate a aver for levying a volume due in a demeanour supposing for levying fines, and might visualisation such person, for a whole, or any partial of any month’s [allowance for a upkeep or a halt upkeep and losses of proceeding, as a box might be,] remaining derelict after a execution of a warrant, to seizure for a tenure that might extend to one month or until remuneration if progressing made: Provided that no aver shall be expelled for a liberation of any volume due underneath this territory unless focus be done to a Court to levy such volume within a generation of one year from a date on that it became due: Provided serve that if such chairman offers to contend his mother on condition of her vital with him, and she refuses to live with him, such Magistrate might cruise any drift of refusal settled by her, and might make an sequence underneath this territory notwithstanding such offer, if he is confident that there is usually belligerent for so doing.”
6. In Shahad Khatoon’s box (supra) a doubt lifted was either on comment of non-payment of maintenance, a Magistrate would be entitled to levy a visualisation on a father and either he could be kept in control until a remuneration is made. The Apex Court reason that a perspective was not excusable and a denunciation of Section 125(3) Cr.P.C. was transparent and a energy of a Magistrate could not be enlarged. The final lines of a visualisation are as under:- “…….This energy of a Magistrate can't be lengthened and therefore, a usually pill would be after expiry of one month, for crack of non-compliance of a sequence of a Magistrate a mother can proceed again to a Magistrate for identical relief. By no widen of imagination a Magistrate can be available to levy visualisation for some-more than one month. In that perspective of a matter a High Court was entirely fit in flitting a impugned sequence and we see no feebleness in a pronounced sequence to be interfered with by this Court. The interest accordingly fails and is dismissed.”
7. In Sundaran Vs. Sumathi 2006(3) KLT 725 it had been contended before a Court that irrespective of a series of defaults that are committed in profitable any month’s maintenance, there is a top of one month on a sum generation of seizure that can be imposed and therefore, a visualisation systematic by a Magistrate for some-more than one month was illegal. The row was deserted and it was answered by a Court as follows:-
“8. we have delicately left by any visualisation in a visualisation extracted above. It is unfit to ascertain a end that a schooled warn for a postulant wants this justice to accept from any visualisation of a visualisation or a accumulative outcome of all a sentences. The Supreme Court has not reason so. It would be irrational for this justice to reason that a Supreme Court has reason so since it goes opposite a process of law and a specific prerequisites in S.125. we have adverted to this row in detail, yet a reading of a orthodox supplies in a light of a preference of a Supreme Court does not leave behind any doubt in my mind, usually since it is submitted during a Bar that many Family Courts/Magistrates do select to follow a interpretation that a postulant wants to place on a preference in Shahada’s case, we need usually contend that a Supreme Court has not reason so. It would be astigmatic and young to reason that a Supreme Court pronounced so. The orthodox supplies contingency lead to a unavoidable and observable end that any month’s default would be visited with a border visualisation of one month’s imprisonment. The small fact that a vacant has not selected to protest any month and has selected to protest of a crack in honour of comparison of months in one petition within a generation of 12 months can't during all broach to a defaulter any unjustifiable advantage. This row is apparently unsuitable and unsustainable.
The Supreme Court was apparently not deliberation a doubt either some-more than one months seizure can be awarded for crack of a instruction to compensate upkeep committed in honour of some-more months than one.
Though a significant pattern is not adverted to in fact in a visualisation extracted above it is clear that a Supreme Court was deliberation a doubt either some-more than one month’s seizure can be imposed on a defaulter if a crack to compensate upkeep for one month continues for some-more months than one. If a default to compensate upkeep for a sold month continues for any length of time, border seizure of one month alone can be imposed. That is all what a Supreme Court has held. The Supreme Court was deliberation a row by a warn that in a eventuality of breach, a defaulter can be incarcerated in control compartment a remuneration is made. That is clear from a visualisation (see a apportionment underlined that refers to a contention).
That row was detered holding that unconstrained apprehension until remuneration was effected can't be made. There is no reported preference of this justice or any other justice on a interpretation of Shahada Khatoon solely that of a Allahabad High Court. we respectfully remonstrate with a schooled Judge of a Allahabad High Court who accepted Shahada Khatoon differently in Dhilip Kumar v. Family Court (2000) Crl.L.J. 3893) though anxiety to a progressing decisions of that Court in Emperor v. Beni (AIR 1938 Allahabad 386) (F.B.) and Ram Bilas v. Bhagwati Devi (1991 Crl.L.J. 1098).”
8. Doubting a exactness of a above judgment, a matter was referred to a Division Bench and to solve a opposing preference of several singular Benches, a matter was taken adult in Santosh Vs. State of Karela RPFC No.34 of 2010, motionless on 18.11.2013 and after referring to countless judgments, a element laid down in Sundaran Vs. Sumathi 2006(3) KLT 725 was approved.
9. So a doubt relates to a quantum of punishment that can be imposed for liberation of balance of maintenance. Under S.125(3), a sentence, for a whole or any partial of any month’s stipend remaining unpaid, after a execution of a warrant, can usually be seizure for a tenure that might extend to one month or until remuneration if progressing made. Does this sustenance meant that a border visualisation that a Magistrate can levy is usually one month? The energy to visualisation is in honour of a whole or any part, of any month’s stipend defaulted and therefore for a default in honour of any month, there can be a visualisation of seizure upto one month. It is not scold to assume that a energy of Magistrate is to levy usually a month’s seizure irrespective of a generation of a balance of maintenance. A month’s seizure for any month’s default is a border chastisement underneath S.125 (3) and not a border of a month’s seizure for a sum default.
10. The justice has to practice a option in any box and confirm either a border chastisement should be imposed or either a obtuse punishment is sufficient. A month’s seizure for any default is not a sequence and sentencing can't be mechanical. The justice has to request a mind, cruise a resources of any box and afterwards confirm about a quantum of punishment, carrying due courtesy to a orthodox border of a border punishment of one month for any default.
11. In perspective of a discussions done above, a sequence of a schooled Family Judge is unconditionally unsustainable. we am fortified in my perspective by a preference of a Apex Court reported in (1999) 5 SCC 672: (1999 AIR SCW 4880) (Shahada Khatoon v. Amjad Ali). The Apex Court has left to a border of observant that a capture can extend to usually one month and if even after a expiry of one month a derelict father does not make a remuneration of balance afterwards a mother can proceed a Magistrate again for a identical service though a capture of a father contingency be usually of one month. This preference of a Apex Court serve lays down a iron in a practice of this energy by a Judicial Magistrate or a Family Judge to a border that usually a capture for a generation of one month can be upheld on an focus either a volume claimed by a mother as balance is for some-more than one month or for usually a month. In one cadence no combination capture can be destined by a Court. It really clearly flows from a above decision.
12. The petition is allowed. The postulant was expelled on halt bail in March, 2014. It is done absolute. However, autocracy is postulated to a mother to record uninformed focus for non-compliance of a sequence upheld underneath Section 125 Cr.P.C. The Court next would pass sequence on a request made. A duplicate of this sequence be sent to a Court below.
25th February, 2016