IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO. 268 OF 2007 Rajesh Singh S/o Bihari Lal, R/o Tanda Man Singh P.S. Biharigarh, District-Saharanpur. ……… Revisionist Versus Judge, Family Court, Haridwar & two others. …...Respondents Dated: September 15 , 2008 Sri Parikshit Saini, learned counsel for the revisionist, S.K. Sandilya, learned counsel for respondent no. 2 &3, Sri M.A. Khan, learned Brief Holder for the State. HON. DHARAM VEER, J. This criminal revision, preferred under section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) r/w Section 19(4) of the Family Courts Act, 1984, is directed against the order dated 26.11.2007 passed by Judge, Family Court, Haridwar in Misc. Case no. 101/2007 Smt. Gurjeet Kaur and others vs. Rajesh Singh, whereby the learned Judge, Family Court has awarded 10 month’s simple imprisonment to the revisionist/husband in default of the payment of the maintenance allowance awarded u/s 125 Cr.P.C. 2. Heard Sri Parikshit Saini, learned counsel for the revisionist, Sri S.K. Sandilya, learned counsel for the respondent nos. 2 & 3 and Sri M.A. Khan, learned Brief Holder for the State/respondent no.1 and perused the record. 3. Perusal of the order impugned shows that neither the revisionist-husband has paid maintenance allowance to the tune of Rs. 4,000/- per month to his wife and son (respondent no.2 & 3), nor he paid the amount of arrears of 10 months i.e. Rs. 40,000/- in lieu thereof to them, hence the trial Court vide order dated 26.11.2006 has awarded 10 month’s simple 2 imprisonment to the revisionist-husband. It was further directed, in case, the husband-revisionist would pay the sum, as per the orders of the trial Court, he would be discharged. Feeling aggrieved with the aforesaid order, the present revision has been preferred before this Court. 4. During the course of arguments learned counsel for both the parties have fairly conceded before this Court that under Sub Cluase-3 of Section 125 Cr.P.C., at one time, the court below cannot award a sentence for more than one month, hence the order upto this extent, by which the revisionist has been awarded 10 month’s imprisonment, is illegal and against the law. For the just decision of the case it is pertinent to mention Sub Cluase-3 of Section 125 Cr.P.C. which is reproduced 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 [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 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.” 5. On reading the aforesaid provision, it is clear that 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 3 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 extend to one month or until payment if sooner made. 6. This Court is of the view that after considering the facts and circumstances of the case, the court below has erred in law in awarding 10 month’s sentence, at one time, to the revisionist in default of the payment of maintenance allowance. Hence to this extent the order passed by the trial Court is neither justified nor as per the law, which warrants interference at this stage. However the Judge Family Court, Haridwar is free to proceed further in the case as per the law. 7. Accordingly, the impugned order dated 26.11.2007 passed by the Judge, Family Court, Haridwar is hereby set-aside. However, the court below is free to proceed further as per the law. (Dharam Veer, J.) 15.09.2008 NCM