IN THE HIGH COURT OF KARNATANA CIRCUIT BENCH AT DHARWAD DATED THIS THE Q3 DAY OF JUNE 2011 BEFORE THE HON’BLE MRJUSTICE A.S.PACHHAPURE CRIMINAL PETITION No.10334/2011 BETWEEN: Shri Kallappa, S/o. Appaji Hurude (U Hundahuda, Age: 58 years, Occupation: Nil. R/o. Behind Ambedkar Galli, Kangrali B.K.. Taluk and District: Belgaum. . . .Petitioner (By Shri Vitthal S. Teli, Advocate) AND: Smt. Yallaubai. W/o. Kallappa Hurude a Hundahuda. Age: 54 years. 0cc: Household work, R/o. H.No.14/A. Laxmi Galli. Halaga. Taluk and District Belgaum. . . . Respondent (By Shri S.B.Devannavar. Advocate) This criminal petition is filed under Section 482 of the Code of Criminal Procedure seeking to quash entire proceedings in Criminal Miscellaneous No.613/2009 pending on the file of the Family Court, Belgaum. This criminal petition coming on for orders, this day, the Court made the following: ORDER The petitioner has sought for quashing the entire proceedings in Criminal Miscellaneous No.613/2009, pending on the file of the Family Court, Belgaum, seeking enforcement of the order of maintenance. The petitioner herein is the husband of the respondent. The respondent filed an application for maintenance and it was granted in Criminal Miscellaneous No.249/2007, the copy of which has been produced at ‘Annexure — C’. The said application was disposed of by the order dated 24.11.2009, granting maintenance of Rs.2,000/- per month to the petitioner from the date of filing of the petition i.e., from 28.06.2007. Accordingly, the respondent filed an application under Section 128 of the Code of Criminal Procedure in Criminal Miscellaneous No.613/2009, claiming arrears of maintenance from 28.06.2007 till 24.11.2009, amounting to Rs.58,000/- 3 for 29 months. The respondent had sought for an order to confine the petitioner in prison for non-payment of the arrears of maintenance and in the circumstances, it is on 10.12.2010, that the petitioner was produced and was ordered imprisonment for 30 days and after the completion of 30 days, he was released. Again on 07.01.2011, the petitioner was produced and he was sentenced for 30 days imprisonment and released. It is on third occasion that on 05.02.2011 the petitioner was produced and as he did not pay the arrears of maintenance, he was ordered to undergo imprisonment for 30 days more. It is in these circumstances, that aggrieved by the orders, the petitioner has approached this Court to quash the entire proceedings. 2. It is the contention of the learned counsel for the petitioner that in an application for enforcement wherein the arrears of maintenance for more than one month is claimed, a person cannot be imprisoned for a period exceeding one month. Therefore, it is the contention that, though in the petition for enforcement, 4 the arrears of maintenance for 29 months are claimed. The maximum sentence of imprisonment cannot exceed one month in one petition and that in case, if successive petitions are filed claiming maintenance for each month, in such circumstances, the husband can be confined in the prison for one month for non-payment of maintenance of the said month. On this aspect of the matter, he has placed reliance on the decision of the High Court of Andhra Pradesh, reported in 2004 Criminal Law Journal 1280 (Abdul Gafaoor alias Ashan v. Smt. Hameema Khatoon and others) and also on the decision of the Calcutta High Court reported in 2005 Criminal Law Journal 237 (Md. Jahangir, the petitioner) as could be seen from the facts and the principle laid down by the different High Courts in the decision referred to supra, it has been held that in case, if the arrears of maintenance for a period exceeding one month, is claimed in one application under Section 125(3) or 128 of the Code of Criminal Procedure, a person cannot be confined for a period exceeding one month for arrears of maintenance for recovery of arrears of more than the period of one month. 3. The provisions of Section 125(3) of the Code of Criminal Procedure are relevant to determine the issue and I think it is just and proper to extract the said provision here under: ‘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 1eing fines, and may sentences such pp1.fqtl1e whole or aaiofeach month’s [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,j remaining unpaid after the execution of the warrant, to to one month or until payment if sooner made”. (emphasis supplied is mine) 4. So as could be seen from the above said provision, the wife or a person who has in order of maintenance on her or his favour, may submit 6 application for whole of the arrears or for each month’s allowance, In case, if the application is for the whole of the arrears, the imprisonment may extend to one month or it may be less than one month, in case, if the payment is made sooner. Thereby an inference could be drawn under the provisions of (3) of the Section 125 of the Code of Criminal Procedure, that if successive applications are filed claiming maintenance for each month, then the petitioner is entitled to seek an order of confining in prison for one month. In case, if the arrears of maintenance are claimed in only one application, the sentence of imprisonment cannot exceed one month. So, taking into consideration, the fact that the petitioner has been in custody for about three months in one application filed seeking arrears of maintenance for 29 months, it has to be held that the confinement is illegal. But an how the proceedings cannot be quashed as a whole, as the respondent has a right to recover the arrears of maintenance b any other mode provided i.e., by sale of movable or immovable properties under 7 Section 421 of the Code of Criminal Procedure. The only direction that can be given is that the learned family judge cannot confine the petitioner again for non payment of the arrears of maintenance in the proceedings pending wherein the respondent has claimed arrears of maintenance for 29 months. With these clarification and direction the petition is disposed of. 3d?. JUDGE Rsh