IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.624 of 2009 PAPPU PASWAN, S/O OF RAMADHAR PASWAN --- PETITIONER Versus 1. STATE OF BIHAR 2. RITA DEVI, W/O PAPPU PASWAN 3. RUBI KUMARI D/O PAPPU PASWAN --- OPP.PARTIES. For the Petitioner : Mr. Sandeep Kumar, Advocate. For the O.Ps : Mr. Anil Kumar, Advocate. For the State : Mr. N. Pandey, APP ----------- 11 14.09.2010 Heard learned counsels for the parties. Petitioner is the husband. He is aggrieved by order dated 23.08.2006 passed by learned Principal Judge, Family Court, Motihari in Maintenance case no. 173 of 2005/40/2005 whereby, on a consideration of the materials brought on record, it has been found that the husband has neglected to maintain the wife who was residing separately and was unable to maintain her. Having found so, learned Court below considered the capability of the husband and came to the conclusion that the evidence of the witnesses clearly proved that the husband is having sufficient means and accordingly a sum of Rs. 2000/- was directed to be paid to the applicant/wife (opposite party no.2 herein) as monthly maintenance and a sum of Rs. 1000/- per month was directed to be paid to applicant‟s daughter (opposite party no.3 herein) as monthly maintenance amount. The said grant of maintenance was made effective w.e.f. the date of filing of the maintenance petition. This matter came up for hearing on 02.07.2010 when the following order was passed:- “ On a consideration of the material available on record, this Court is of the view that the petitioner should be directed first 2 to deposit a sum of Rs. 40,000/- ( forty thousand) within a period of eight weeks in the Court below and file affidavit within the same time. This Court shall whereafter consider the submission of the petitioner that he was defrauded and thereby eluded from contesting the present maintenance case. List this case after eight weeks.” Petitioner has filed a supplementary affidavit paragraph no.2 whereof reads as under:- “2. That the petitioner has not deposited Rs. 40,000/- as he has already undergone imprisonment for the maintenance amount and he has no money to deposit and per order dated 2.7.2009.” While assailing the order impugned, learned counsel for the petitioner submits that the same was passed ex parte by practicing fraud. When queried, it was stated that no application till date has been filed in the Court below for setting aside the alleged ex parte order in terms of the provision of the Code of Criminal Procedure. The impugned order records as under in paragraph no.3:- “3 From perusal of the order sheet on 22.12.2005 it appears that the O.P. appeared by filing power in the case, on which dated 2.1.2006 was fixed for filing show cause of the O.P. Thereafter no show cause was filed as a result of which the case was fixed for hearing.” Learned counsel for the petitioner has taken a stand before this Court that the petitioner has remained in custody for breach of the order directing payment for maintenance in favour of the estranged wife and daughter for more than 06 months and as such he is not entitled to pay the amount outstanding till the date of his release. It is stated that he was remanded in the present case on 11.02.2009 and by order dated 11.09.2009 passed in the present 3 proceeding he was released from the custody on 04.10.2009. Lower Court records which were called for in the present case reflect that on 18.12.2009 another petition was filed on behalf of the applicant/wife for payment of the outstanding dues including the monthly maintenance amount as fixed under the impugned order. It is stated that since the petitioner has already remained in custody for more than 07 months, he is entitled to be released and no further action against him for non payment of the remaining unpaid amount till the date of release can be taken against him. He relies on a judgment of the Hon‟ble Supreme Court in the case of Shahada Khatoon & Ors. vs. Amjad Ali & Ors. since reported in 1999 Cri. L.J 5060. Learned counsel appearing on behalf of the opposite parties, however, supported the impugned order. It is contended that in spite of granting adequate opportunity and appearance of the petitioner/husband in the proceeding in the Court below no show cause was filed on his behalf, and accordingly Court had to proceed further and to permit the petitioner to lead evidence which was adduced whereafter it has been found that the applicant/wife (opposite party no.2 herein), and the minor daughter (opposite party no.3) of the petitioner was entitled to get maintenance. Relying on 2005 Cri. L.J 3158 (Gorakshnath Khandu Bagal vs. State of Maharashtra & Ors.), it is contended that for every breach of the order the petitioner is bound to be consigned to jail custody. I have considered the submissions advanced on behalf of the parties. Section 125(3) of the Code of Criminal Procedure (hereinafter referred to as the „Code‟) reads as under:- 4 “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 port of each month‟s allowance 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.” (underline is mine) Section 126(2) of the Code of Criminal Procedure reads as under:- “All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.” From perusal of the proviso to Section 126(2) of the 5 Code it would appear that the Code vests the Magistrate with the jurisdiction to proceed ex parte if it is found that the person against whom an order of payment of maintenance is proposed to be made is willfully neglecting to attend the Court. This proviso also gives jurisdiction to the Court for recall/set aside of the said order if an application is filed within a particular time frame on behalf of the person against whom the order has been made. Admittedly no such application has been filed by the petitioner in the Court below. Section 125(3) of the Code quoted hereinabove vests the Court to send the defaulting party to imprisonment for a term which may extend to one month for every breach of the order. Learned counsel has placed reliance on Shahada Khatoon (supra). It is apposite to consider the proposition of law propounded in the said case. It is a short judgment comprising of one paragraph. Dealing with the issue as to whether the Magistrate or the Court has a jurisdiction to sentence for a period of one month or until payment of the entire dues it was found and held by the Apex Court that by no stretch of imagination the Magistrate can be permitted to impose sentence for more than one month. The judgment further records wife can always approach the Court again for similar relief. It is admitted position that no amount has been paid by the petitioner either by way of current maintenance and/or by way of arrear which fell due in terms of the order. It further appears that the wife has again approached the Court seeking an order directing the husband/petitioner for payment of the outstanding amount. No order could be passed thereon as in the meantime the records were called for by this Court. 6 On a consideration of the submission advanced on behalf of the parties, this Court is of the considered view that for every breach of the order the applicant/wife can approach the Court for realization of the amount and the Court below has to entertain the said application and take steps in terms of the provision contained under Section 125(3) of the Code. The submission of the learned counsel for the petitioner that the amount fell due till the date of his release from jail custody cannot be realized since he has already remained in custody for more than 06 months, in my view, is wholly erroneous and contrary to law and is/are hereby rejected. Reliance placed on the judgment seems to be misplaced. Petitioner is already enjoying the privilege of bail as granted by this Court under order dated 11.09.2009. The wife/ opposite party no.2 has already approached the Court for appropriate relief(s) which is pending consideration. In view of discussions made hereinabove the revision application fails. However, it is made clear that petitioner shall continue to remain on bail which was granted to him by order dated 11.09.2009 passed in the present proceeding till a fresh order is passed. Learned court below shall proceed in accordance with law on the application filed on behalf of the wife/opposite party no.2 which is pending. The application is, accordingly, disposed of. Sym ( Kishore K. Mandal, J.)