Magistrate Cannot Impose More Than 12 Months Sentence For Non-Payment Of Maintenance In An Application U/S 125(3) CrPC: Bombay HC

A Magistrate had sentenced a husband to undergo simple imprisonment of 47 months for default in payment of maintenance of 47 months. The Magistrate issued an arrest warrant against the husband under Section 125 (3) of Cr.P.C. read with Section 28 of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) for recovery of interim maintenance after no payments were made.

The High Court had to consider the question as to whether the power of the Magistrate to sentence a defaulter for non-payment of maintenance granted under the D.V. proceedings was restricted to impose imprisonment for a period of 12 months under sub-section (3) of Section 125 Cr.P.C.

A Single Bench of Justice Sharmila U. Deshmukh observed, “Plain reading of the proviso makes it evident that the proviso creates an embargo on power of Magistrate to issue warrant for recovery of amount which has become due beyond period of one year…The proviso when read with the main section makes it evident that by limiting the application for issuance of warrant to a period of 12 months, the power of the Magistrate stands restricted to impose maximum punishment of imprisonment for period 12 months.”

Advocate Himanshu S. Shinde represented the petitioner, while APP Tanveer Khan appeared for the respondents.

The Court explained that Sub-section 3 of Section 125 Cr.P.C. empowers a Magistrate to issue a warrant for every breach of the order and for sentencing a person for the whole or any part of each months maintenance remaining unpaid 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 Cr.P.C. however restricts the power of a Magistrate to issue a warrant for recovery of the amount due unless an application is made to the Court to levy such amount within a period of one year from the date on which it becomes due.

The Court remarked, “If an application cannot be filed seeking warrant for recovery of amount remaining unpaid for period of more than one year, there is no question of imprisonment being imposed for a term exceeding one year. The period of 12 months is the outer limit.”

The Court clarified that a separate application was required to be filed for each month’s default and a common application can be filed limited to 12 months default. Similarly, a warrant can be issued for a default of 12 months, however, the sentence which can be imposed was a maximum of 12 months in case the default was 12 months.

Accordingly, the High Court set aside the order of the Magistrate and the petition succeeded.

Cause Title: Vikram Ramesh Rughani v. The State of Maharashtra & Anr. (Neutral Citation: 2024:BHC-AS:8917)

Appearance:

Petitioner: Advocate Himanshu S. Shinde

Respondents: APP Tanveer Khan and Legal Aid Bhuvan Singh

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