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Yusuf Shah vs Rubi Bano @ Beby & Ors on 19 February, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 130 / 2016
Yusuf Shah S/o Shahnaj Shah, Age-30 years, By Caste
Mohmmedan, R/o Ward No.27, Amar Singh Pura, Bikaner (Raj.)
(Lodged in District Jail, Churu)

—-Petitioner
Versus

1. Rubi Bano @ Beby W/o Yusuf Shah, D/o Hasan Ali, Age-27
yrs. By Caste Mohmmedan, R/o Rajgarh, Ward No.09, Tehsil

– Rajgarh, Distt. Churu (Raj.)

2. Sania D/o Yusuf Shah, By Caste Mohmmedan, Age-07 Yrs,
minor through natural mother and guardian Rubi bano @
Beby W/o Yusuf Shah, R/o Ward No.27, Amar Singh Pura,
Bikaner (Raj.) at present R/o Rajgarh, Ward No.09, Tehsil –
Rajgarh, Dist. Churu (Raj.)

3. State of Rajasthan

—-Respondents
Connected With
S.B. Criminal Revision No. 131 / 2016
Yusuf Shah S/o Shahnaj Shah, Age-30 years, By Caste
Mohmmedan, R/o Ward No.27, Amar Singh Pura, Bikaner (Raj.)
(Lodged in District Jail, Churu)

—-Petitioner
Versus

1. Rubi Bano @ Beby W/o Yusuf Shah, D/o Hasan Ali, Age-27
yrs. By Caste Mohmmedan, R/o Rajgarh, Ward No.09, Tehsil

– Rajgarh, Distt. Churu (Raj.)

2. Sania D/o Yusuf Shah, By Caste Mohmmedan, Age-07 Yrs,
minor through natural mother and guardian Rubi bano @
Beby W/o Yusuf Shah, R/o Ward No.27, Amar Singh Pura,
Bikaner (Raj.) at present R/o Rajgarh, Ward No.09, Tehsil –
Rajgarh, Dist. Churu (Raj.)

3. State of Rajasthan

—-Respondents
__
For Petitioner(s) : Mr. Mukesh Sharma
For Respondent(s) : Mr. Shambhoo Singh
__
(2 of 7)

HON’BLE MR. JUSTICE P.K. LOHRA
Order
17/02/2018

Petitioner-husband has preferred these two separate revision

petitions under Section 397/401 Cr.P.C. to challenge impugned

orders of even date, i.e., on 07.12.2015, passed by Judge, Family

Court, Churu.

In Criminal Revision Petition No.130/2016, the order which

was passed by learned Court below on respondent’s application

under sub-section (3) of Section 125 Cr.P.C. for recovery of

arrears of maintenance to the tune of Rs.92,250/-, the learned

Court below has handed down sentence of six months’ simple

imprisonment to the petitioner by taking shelter of Section 67 of

the IPC. Likewise, in Criminal Revision No.131/2016, learned

Court below, upon consideration of identical application of the

respondent under sub-section (3) of Section 125 Cr.P.C. for

recovery of maintenance of arrears to the tune of Rs.20,250/-,

has handed down sentence of three months’ simple imprisonment

to the petitioner yet again resorting to Section 67 IPC.

It is argued by learned counsel for the petitioner that, while

passing the impugned order in both the revision petitions, learned

Magistrate has seriously erred in construing sub-section (3) of

Section 125 Cr.P.C. Learned counsel further submits that under

sub-section (3) of Section 125 Cr.P.C., Court is not empowered to

pass any order for imprisonment beyond a period of one month.

Learned counsel has also contended that learned Court below has

seriously erred in invoking Section 67 IPC for handing down
(3 of 7)

sentence of six months and three months respectively in both the

cases, inasmuch as, non-payment of maintenance allowance

cannot be equated with non-payment of fine. In support of his

arguments, learned counsel has placed reliance on a decision of

Supreme Court in case of Sahada Khatoon and Ors. Vs. Amjad Ali

and Ors. : 1999 Cri.L.J. 5060. Supreme Court, while considering

rigor of sub-section(3) of Section 125 Cr.P.C. observed that the

power under the aforesaid provision is circumscribed and therefore

a Magistrate cannot impose imprisonment to a term which may

extend to one month or until the payment, if sooner made. The

Court held :-

“Sub-section(3) of Section 125 Cr.P.C.
circumscribes the power of a Magistrate to impose
an imprisonment to 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 Magistrate the wife can approach
again the Magistrate for similar relief. The Apex
Court further observed that by no stretch of
imagination the Magistrate can be permitted to
impose sentence for more than one month.”

The same view is also reiterated by this Court in the cases of

(1) Suresh Vs. State of Raj. Ors.:2005(3) R.Cr.D. 35, and

(2) Sunil Kumar Jain Vs. State Anr : 2005 W.L.C. (Raj.) UC 482.

Per contra, learned counsel for the respondents has opposed

the revision petitions.

I have considered the submissions made at the Bar and

perused both the impugned orders.

(4 of 7)

For examining legality and propriety of the impugned orders,

it would be just and appropriate to see the nature of sentence

passed by a Court under Sub-section (3) of Section 125 Cr.P.C.,

which reads as under:

“(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.

Explanation.- If a husband has contracted
marriage with another woman or keeps a mistress,
it shall be considered to be just ground for his wife’
s refusal to live with him.”

A bare perusal of the above quoted sub-section(3) of Section

125 Cr.P.C. makes it abundantly clear that the sentence imposed

under Section 125(3) Cr.P.C. is only a mode of enforcement of

direction to pay the amount of maintenance and not as a

punishment, therefore, the learned Court below in both the cases

has seriously erred in invoking Section 67 IPC for handing down

sentences of six months’ and three months’, respectively to the

petitioner.

(5 of 7)

Supreme Court in case of Smt. Kuldip Kaur vs Surinder Singh

And Anr. [(1989) 1 SCC 405] has also clarified that imposition of

sentence of imprisonment on defaulting party will not discharge

liability to pay maintenance amount. While examining the scheme

of the provisions, embodied in Chapter IX Cr.P.C., comprising

Sections 125 to 128 which constitutes a complete code in itself,

the Court has observed that it deals with three questions, which

are:

1. adjudication as regards the liability to pay
maintenance allowance to the neglected wife and
child etc.;

2. the execution of the order on recovery of monthly
allowance, and,

3. the mode of execution of an order for monthly
allowance.

Recognizing imposition of a sentence of jail on the person

liable to pay monthly allowances as one of the modes for enforcing

the order of maintenance, the Court held:

“A distinction has to be drawn between a
mode of enforcing recovery on the one hand and
effecting actual recovery of the amount of monthly
allowance which has fallen in arrears on the other.
Sentencing a person to jail is a `mode of
enforcement’. It is not a `mode of satisfaction’ of
the liability. The liability can be satisfied only by
making actual payment of the arrears. The whole
purpose of sending to jail is to oblige a person
liable to pay the monthly allowance who refuses to
comply with the order without sufficient cause, to
obey the order and to make the payment. The
purpose of sending him to jail is not to wipe out
the liability which he has refused to discharge Be it
also realised that a person ordered to pay monthly
allowance can be sent to jail only if he fails to pay
monthly allowance ‘without sufficient cause’ to
comply with the order. It would indeed be strange
to hold that a person who `without reasonable
cause’ refuses to comply with the order of the
Court to maintain his neglected wife or child would
(6 of 7)

be absolved of his liability merely because he
prefers to go to jail sentence of jail is no substitute
for the recovery of the amount of monthly
allowance which has fallen in arrears Monthly
allowance is paid in order to enable the wife and
child to live by providing with the essential
economic wherewithal. Neither the neglected wife
nor the neglected child can live without funds for
purchasing food and the essential articles to
enable them to live. Instead of providing them
with the funds, no useful purpose would be served
by sending the husband to jail Sentencing to jail is
the means for achieving the end of enforcing the
order by recovering the amount of arrears. It is
not a mode of discharging liability. The section
does not say so. The Parliament in its wisdom has
not said so commence does not support such a
construction. From where does the Court draw
inspiration for persuading itself that the liability
arising under the order for maintenance would
stand discharged upon an effort being made to
recover it? The order for monthly allowance can be
discharged only upon the monthly allowance being
recovered. The liability cannot be taken to have
been by sending the person liable to pay the
monthly allowance, to jail. At the cost of repetition
it may be stated that it is only a mode or method
of recovery and not a substitute for recovery. No
other view is possible.”

Now adverting to the impugned orders, suffice it to observe

that learned Court below has misconstrued Sub-section (3) of the

Section 125 Cr.P.C. and also seriously erred in invoking Section 67

IPC for imposing sentence of six months’ and three months,

respectively. Therefore, in view of settled position of law laid

down by Apex Court in Sahada Khatoon (supra), both the

impugned orders cannot be sustained.

Resultantly, both the impugned orders are quashed and set

aside and the sentence handed down to the petitioner in both the

cases is reduced to one month only. As the petitioner has already
(7 of 7)

served one month’s sentence in both these matters and he is on

bail, he need not surrender to bail bonds.

Before parting, it is made clear that upsetting of both the

impugned orders shall have no ramification on the legal rights of

respondent-wife to initiate appropriate proceedings under Section

128 Cr.P.C. for enforcement of the order of maintenance.

Let a copy of this order be placed in connected file.

(P.K. LOHRA)J.

Bharti/134-135

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