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Shri.Anil Sampatrao Kothawale vs Pushpabai Anil Kothawale And … on 16 October, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 1778 OF 2017

Anil Sampatrao Kothawale …Petitioner

versus

Pushpabai Anil Kothawale and others …Respondents

…..
Mr. Mukul S. Kulkarni, advocate for the petitioner
Mr. H.P. Randhir, avocate for respodent No. 1 and 2
Mr. V.M. Kagne, A.P.P. for respondent No.3-State
…..

CORAM : V. K. JADHAV, JJ.

Date of Reserving
the Order :06.10.2018

Date of pronouncing
the Order :16.10.2018

O R D E R :-

1. By way of this writ petition, the petitioner is challenging the

judgment and order of conviction and sentence dated 25.9.2017

passed by the learned Judicial Magistrate First Class (Court No.2),

Shirpur in Criminal Misc. Application No. 245 of 2017 and also the

judgment and order dated 3.11.2017 passed by the learned

Additional Sessions Judge, Dhule in criminal appeal No. 103 of 2017,

thereby confirming the period of sentence, as awarded by the

learned Magistrate.

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2. Brief facts giving rise to the present writ petition are as follows:-

a) Respondent No.1 is the wife of petitioner. Their marriage was

solemnized on 07.05.1981 and respondent No.2 is their daughter

born out of the wedlock. After marriage, respondent No.1 resided

with the petitioner for one and half year at Nashik. During that period,

respondent No.1 was subjected to domestic violence. In the year

1983, the petitioner drove respondent No.1 out of house. In the year

1984, the father and brother of respondent No.1 took her to the

house of petitioner, however, the petitioner did not allow her to reside

with him and asked for divorce. The petitioner had performed second

marriage with one Sunita. Respondent No.1 had issued notice on

3.6.1985 to the petitioner for restitution of conjugal rights. However,

the petitioner did not respond to the said notice. The respondent No.1

therefore, had filed criminal misc. application No. 160 of 1985 for

grant of maintenance. The said application was allowed. The appeal

preferred against the order of Magistrate thereby granting

maintenance, before the learned Sessions Judge was also

dismissed. So as to avoid payment of maintenance, the petitioner

compromised the dispute in the year 1999. Petitioner admitted to

reside with respondent No.1 at Shirpur and to pay her Rs.4000/- per

month as maintenance. Respondent No.1 gave birth to respondent

No.2 on 4.3.2002.

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b) After some period, the petitioner started to ignore respondent

nos. 1 and 2. On 12.7.2009, respondent No.1 and her aunt had been

to Dhule for shopping. At that time, the petitioner and two others

stopped them on the way and petitioner abused respondent No.1 and

demanded divorce. The petitioner also threatened respondent No.1.

It is with these premises, respondent Nos. 1 and 2 have filed Criminal

M.A. No. 343 of 2009 against the the petitioner under the provisions

of The Protection of Women from Domestic Violence Act, 2005

(hereinafter for the sake of brevity referred to as “the Act of 2005”).

c) The petitioner appeared in the application and strongly

opposed the same by filing say at Exh.9. The petitioner has denied

all the allegations made by the respondents. The petitioner has also

denied that the respondents were subjected to domestic violence. It

was contended by the petitioner that respondent No.1 used to abuse

him by saying that her marriage was performed against her wish.

Respondent No.1 went to her parents house at her own and did not

return and on the contrary, obtained ex-parte maintenance order. The

petitioner has also denied paternity of respondent No.2 as he has no

concern with her.

d) The learned J.M.F.C. (Court No.3), Dhule, after hearing the

parties and framing necessary points for consideration, by judgment

and order dated 14.8.2015 granted amount of Rs.5000/- per month to

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respondent Nos. 1 and 2 for the purpose of paying rent towards

residence. The learned J.M.F.C. further granted monthly

maintenance of Rs.3000/- to the respondent No. 1 and Rs.1000/- per

month to respondent No. 2. It was also directed to the petitioner to

pay an amount of Rs.50,000/- each to respondent Nos. 1 and 2

within three months from the date of the order.

e) Since the petitioner was in arrears of maintenance amount, the

respondent Nos.1 and 2 herein filed Cri. M.A. No. 245 of 2017 for

grant of arrears of maintenance amount of Rs.1,71,000/-. It was also

prayed that the petitioner be directed not to commit domestic

violence against respondent Nos. 1 and 2 and punish him in view of

Section 32 of the Act of 2005.

f) The learned Magistrate, after hearing, by order dated

25.9.2017 allowed the Criminal M.A No. 245 of 2017 and the

petitioner was sentenced to suffer S.I. for one year as per Section

125(3) of Cr.P.C. It was directed that he shall be released forthwith if

he paid Rs.1,71,000/- to the concerned jail authorities or deposit

such amount in the court.

g) Being aggrieved by the order dated 25.09.2017 passed by the

learned J.M.F.C. Shirpur, in Criminal M.A. No. 245 of 2017, the

petitioner preferred criminal appeal No. 103 of 2017 in the Sessions

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Court at Dhule. The learned Additional Sessions Judge, Dhule by the

judgment and order dated 3.11.2017, partly allowed the appeal. The

order dated 25.9.2017 passed by the learned Magistrate is modified

in terms that the petitioner shall suffer S.I. for a term of 12 months

covering the period from 25.4.2016 to 24.4.2017 or until payment of

Rs.1,08,000/- if sooner made. The order of imprisonment continues

from 25.9.2017. Hence, this writ petition.

3. Learned counsel for the petitioner submits that the Magistrate

has committed an error in sentencing the petitioner for 12 months of

imprisonment by invoking the power under Section 125 (3) of Cr.P.C.

and has also erred in reading and applying the said provisions to the

present case. The order passed by the learned Magistrate is without

jurisdiction. The learned Magistrate has not considered the ratio laid

down by the Supreme Court in the case of Shahada Khatoon and

others vs. Amjad Ali and others, reported in (1999) 5 SCC 672.

Learned counsel submits that the learned Sessions Judge has partly

accepted the contention of the petitioner that the amount of arrears of

past one year are only recoverable, however, failed to further

appreciate the contention of the petitioner that he ought not to have

been sentenced to one year imprisonment. Thus, the continuation of

the petitioner in custody will amount to illegal detention, since the

sentence imposed upon him is in excess of the period provided by

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law. The learned Additional Sessions Judge, instead of remanding

the matter for fresh consideration to the learned Magistrate, has

committed an error in deciding the matter and thereby the petitioner

has lost the chance to agitate the point of sentence before the trial

court. The petitioner is in custody for more than one month. The

maximum sentence would be imposed for one month and since the

same is already over, he is required to be released forthwith. Thus,

now the detention of the petitioner will violate his right to life since he

cannot be detained for more than one month. Learned counsel for

the petitioner thus submits that the petition may be allowed.

Learned counsel for the petitioner, in order to substantiate his

submissions, placed reliance on the following judgments:-

i) Poongodi and anther vs. Thangavel, reported in (2013) 10 SCC
618;

ii) Laljee Yadav vs. State of Bihar and others, reported in (2011) 4
PLJR 248;

iii) Shahada Khatoon and others vs. Amjad Ali and others, reported
in (1999) 5 SCC 672.

iv) Judgment of this court (Nagpur Bench) dated 04.09.2017 in Criminal
writ petition No. 264 of 2015 (Mohd. Aarif Pathan s/o Ibraham
Pathan vs. State of Maharashtra and others.

4. Learned counsel for respondent Nos. 1 and 2 submits that the

petitioner has willfully deserted respondent No.1 and he has

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performed second marriage with one Sunita. In spite of issuance of

notice for restitution of conjugal rights, the petitioner has not

responded to the said notice. Learned counsel submits that even at

one point of time, the petitioner had obstructed respondent No.1 on

the way, when she was proceeding alongwith her aunt and insisted

for divorce and also threatened her. It is in these premises, the

respondents have initiated proceedings for grant of maintenance etc.

as respondent No.1 wife was subjected to domestic violence. The

learned Magistrate, after hearing the parties and taking into

consideration the facts of the case, has awarded maintenance

amount to respondent Nos. 1 and 2. Learned counsel thus submits

that the Magistrate has power to direct imprisonment to the extent of

one month for each month’s default. Furthermore, since application

for recovery of maintenance could be filed before expiry of 12 months

from the date on which it falls due, the outer limit for sentence would

be of 12 months maximum. Thus, the ratio is that the court can award

12 months imprisonment in default of 12 months arrears. In other

words, 12 monthly defaults can be clubbed together and

imprisonment for 12 months is the outer limit. The learned Additional

Sessions Judge has rightly confirmed the said order passed by the

Magistrate to that extent and there is no error committed by the

appellate court. Learned counsel for respondent nos. 1 and 2 thus

submits that the petition may be dismissed.

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Learned counsel for respondent Nos. 1 and 2, in order to

substantiate his submissions, placed reliance on the following

judgments:-

i) Judgment dated 30.9.2008 passed by the High Court of
Gujarat at Ahmedabad in Criminal Reference No. 2 of 2008
[Suo motu- Applicant(s) vs State of Gujarat-

Respondent(s)].

ii) Order of this Court (Coram: Smt. Roshan Dalvi, J.) dated
13.01.2010 in Criminal Revision Application No. 616 of 2009 in
the case of Manoj Markas Thorat vs. The State of
Maharashtra and Anr.

iii) Gorakshnath Khandu Bagal vs. State of Maharashtra and
others, reported in 2005 Cri.L.J. 3158.

5. I have also heard the learned A.P.P. for respondent No.3-State.

6. According to the petitioner, the Magistrate has committed an

error in sentencing the petitioner for 12 months of imprisonment by

invoking the provision of Section 125(3) of Cr.P.C. and also erred in

interpreting the said provision. The order passed by the learned

Magistrate is without jurisdiction. Learned counsel for the petitioner

has placed reliance on the judgment in the case of Shahada

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Khatoon (supra). Before adverting the ratio laid down by the

Supreme court in the aforesaid case, it would be just and proper to

reproduce herein below the provisions of Section 125(3) of Cr.P.C.:-

“125. Order for maintenance of wives, children
and parents:-

(1) ……
(a) to (d) ….
(2) …….
(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 extent 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.

Explanation.- If a husband has contracted marriage with

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another woman of keeps a mistress, it shall be considered
to be just ground for his wife’s refusal to live with him.”

7. In the case of Shahada Khatoon (supra), a short question that

arose for consideration was whether the learned Single Judge of the

Patna High Court correctly interpreted sub-section (3) of Section 125

of Cr.P.C. by directing that the Magistrate can only sentence for a

period of one month or until payment, if sooner made. Learned

counsel for the appellants in the above case contended that the

liability of the husband arising out of an order passed under Section

125 of Cr.P.C. 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. The

Apex Court has not accepted the contention of the learned counsel

for the appellants therein and held that 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. The Supreme court

also observed that 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 and by no

stretch of imagination the Magistrate can be permitted to impose

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sentence of more one month. Learned counsel for the petitioner, in

the light of the aforesaid ratio laid by the Supreme court in the case

of Shahada Khatoon (supra) has submitted that the Magistrate is

not empowered to impose sentence for more than one month and as

such, the order passed by the Magistrate and confirmed by the

learned Additional Sessions Judge with certain modification is

required to be quashed and set aside. It appears that the learned

counsel for the petitioner has misinterpreted the provisions of section

125(3) of Cr.P.C. and also not correctly understood the ratio laid

down by the Supreme court in the case of Shahada Khatoon

(supra).

8. In the case of Poongodi and another vs. Thangavel (supra),

the issue before the Supreme Court was altogether different. In the

said case the High Court has held that the proviso to section 125(3)

of Cr.P.C. is a fetter on the entitlement of the claimants to receive

arrears of maintenance beyond period of one year preceding the

date of filing of the application under Section 125(3) of Cr.P.C. The

Supreme Court having considered the said provision of the Code,

observed that the same does not create a bar or in any way affects

the entitlement of a claimant to arrears of maintenance. Even in para

6 of the judgment, the Supreme Court by giving reference to the case

of Shahada Khatoon (supra), observed that the successive

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applications under Section 125(3) of Cr.P.C. highlighting the

subsequent defaults in payment of maintenance was acknowledged

by the Supreme Court it the case of Shahada Khatoon. The

Supreme Court thus held that the first proviso to Section 125(3)

therefore, does not extinguish or limit the entitlement of the

appellants to arrears of maintenance granted by the learned trial

court, as has been held by the High Court. The Supreme court has

accordingly interfered with the order passed by the High Court. The

Supreme court has made the observations as above, in the different

context and it has hardly any application to the facts and

circumstances of the present case and also the issue raised.

However, on the other hand, the observations of the Supreme Court

by referring the case of Shahada Khatoon (supra) supports the

contention raised by the respondent-wife herein.

9. In the case of Laljee Yadav vs. State of Bihar and others

(supra), relied upon by learned counsel for the petitioner, the

Supreme Court in para 29 and 30, has made the following

observations:-

“29. Again, this is significant inasmuch as the maintenance
being a monthly payment, for each month’s default, defaulter can
be sentenced for a month’s imprisonment. Now, we find there is
a concept of one month as a unit. Here, we may refer to the

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decision of the Apex Court in the case of since in the case of
Shahada Khatoon Others – Versus- Amjad Ali Others,
[(1999) 5 Supreme Court Cases 672]. That case went from this
Court and a similar stand was taken on behalf of the wife before
the Apex Court that so long as payment is not made, the
husband would be liable to be detained and the person would
continue in custody until payment is made. The Apex Court
rejected the contention. Their Lordships referred to sub-section
(3) of Section 125. The judgment of the Apex Court, as reported,
is quoted hereunder:

“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 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 only remedy
would be after expiry of one month. For breach or non-
compliance with the order of the Magistrate the wife can
approach the Magistrate again for similar relief. By no stretch of
imagination can the Magistrate be permitted to impose sentence
for more than one month. In that view of the matter the High

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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.”
(Emphasis supplied)

30. Here, we may like to point out another aspect of the matter.
As seen above, the maintenance is to be fixed on monthly basis.
The sentence has, accordingly, been limited to a month
maximum for each breach. Thus, as noticed by the Apex Court
in the above referred to cases, there has to be separate
sentencing upon separate and fresh application after considering
the matter for each month or part thereof for which maintenance
remains unpaid. Thus, by no stretch of imagination, can there be
a continuous mechanical remand as in the present case.”

10. Thus the ratio laid don by the Supreme court by referring the

case of Shahada Khatoon (supra) also supports the contention

raised by learned counsel for the respondents in the present case.

In the case of Suo Motu vs. State of Gujarat in criminal reference

No.2 of 2008 decided on 30.9.2008, the following question has been

referred to the Full Bench of the Gujarat High Court:-

“In the light of the decision of the Supreme Court in the
case of Shahada Ors. vs. Amjad Ali and Ors, (1999) 5 SCC 672,
when a person is ordered to pay maintenance under sub-section
(1) of Section 125 of the Code of Criminal procedure, 1973 fails
without sufficient cause to comply with such order, whether the
learned Magistrate, in exercise of powers under sub-section (3)
of section 125 is empowered to sentence such person to
imprisonment for a term exceeding one month.”

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In para 21 and 22 of the judgment, the full Bench of Gujarat

High Court has answered the said question in following terms:-

“21 For the reasons already stated, we find that the Supreme
Court in Shahada Khatoon’s case did not lay down the ratio that
regardless of the extent of default on the part of the husband in
paying maintenance, the Magistrate can impose imprisonment
of maximum of one month. We are in respectful disagreement
with the view expressed by some of the High Courts to the
contrary.

22. In the result, question is answered in following terms:

“Magistrate in exercise of powers under section 125 of the
Criminal Procedure Code is empowered to sentence a
defaulting person for a term upto one month (or until payment if
sooner made) for each month of default subject of course to the
limitation provided in proviso to sub-section (3) of section 125.
In other words, it is open for the Magistrate to award sentence
upto a maximum of one month for each month of default
committed by the person ordered to pay maintenance and the
maximum limit of sentence of one month referred to in sub-
section (3) of section 125 will be applicable for each month of
default. Magistrate can entertain separate applications from the
person entitled to receive such maintenance or even entertain a
common application for several months of default and pass
appropriate order and, if found necessary, sentence a defaulting
person upto a maximum one month fore each month of default.
In all such cases, however, period of limitation provided in sub-
section (3) of section 125 shall have to be borne in mind.”

In Special Criminal Application No. 897 of 2008, we may
notice that for the unpaid maintenance for the period from
7.6.02 to 6.8.05, application under section 125(3) of the Criminal

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Procedure Code was made on 1.7.06. We may, however, leave
the factual aspects to the learned single Judge to work out and
confine ourselves to answering the reference made to the
Larger Bench.

Reference stands disposed of accordingly.”

11. Even the Division Bench of this court in the case of

Gorakshnath Khandu Bagal vs. State of Maharashtra and others,

(supra) relied upon by learned counsel for the respondents, while

dealing with the similar issue, in para 7 and 9 has also taken a similar

view as taken by the Full Bench of Gujarat High Court.

12. So far as the judgment of this Court (Nagpur Bench) in the

case of Mohd. Aarif Pathan s/o Ibrahim Pathan vs. State of

Maharashtra and others (supra), relied upon by learned counsel for

the petitioner is concerned, the ratio laid down by the Division Bench

of this court in the case of Gorakshnath Khandu Bagal vs. State of

Maharashtra and others, (supra) was not brought to the notice of

learned Single Judge of this court. Thus, the judgment rendered by

the learned Single Judge of this Court in the criminal writ petition No.

264 of 2015, as aforesaid, is per incuriam.

13. It is thus clear that the Magistrate, in exercise of the powers

under Section 125 of Cr.P.C., is empowered to sentence the

defaulting person for a term of one month for each month of default.

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In other words, it is open for the Magistrate to award the sentence up

to maximum one month for each month’s default made by the person

ordered to pay the maintenance. Thus, the maximum limit of

sentence of one month referred to in Sub-section (3) of Section 125

of Cr.P.C. is applicable for each month of default. Even the

Magistrate can entertain separate applications or even entertain a

common application for several months of default and pass

appropriate order. If there are arrears of more than one month, then

the imprisonment exceeding the period of one month can be

imposed.

14. In the instance case, in lieu of maximum 12 defaults, the

Magistrate has imposed imprisonment for 12 months. However, the

same is outer limit and lesser imprisonment can be imposed. Such

imprisonment will be followed until the payment is made. In view of

the same, I deem it appropriate to reduce the sentence to six months

(15 days imprisonment for each month’s default). Hence, the

following order:-

ORDER

I. Criminal writ petition is partly allowed.

II. The impugned judgment and order dated 25.9.2017 passed
by the learned Judicial Magistrate, First Class (Court No.2)
Shirpur in Criminal Misc. Application No. 245 of 2017, which is
confirmed with certain modification by the Additional Sessions

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Judge, Dhule vide judgment and order dated 3.11.2017
passed in criminal appeal No. 103 of 2017, is hereby modified
by reducing the sentence from simple imprisonment for one
year to six months’ simple imprisonment.

III. Rest of the order as confirmed by the learned Additional
Sessions Judge in criminal appeal stands confirmed.

IV. Criminal Writ petition is accordingly disposed of.

(V. K. JADHAV, J.)

rlj/

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