CRREF/220/2008 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REFERENCE No. 2 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE AKIL KURESHI ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== SUO MOTU - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ====================================== Appearance : SUO MOTU for Applicant MR SUNIT SHAH, PP, WITH MR DIPEN DESAI, APP for Respondent ====================================== CRREF/220/2008 2/22 JUDGMENT CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE AKIL KURESHI Date : 30 /09/2008 CAV JUDGMENT : (Per : HONOURABLE MR.JUSTICE AKIL KURESHI) In this reference, following question has been referred to the Full Bench: “In the light of the decision of the Supreme Court in the case of Shahada Ors., Vs. Amjad Ali and Ors., (1999) 5 SCC 672, when a person is ordered to pay maintenance under sub-section (1) of section 125 of the Code of Criminal Procedure, 1973 fails without sufficient cause to comply with such order, whether the learned Magistrate, in exercise of powers under sub-section (3) of section 125 is empowered to sentence such person to imprisonment for a term exceeding one month.” 2. Factual background leading to the question is as follows:- Special Criminal Application No.897 of 2008 has been filed by one Rama Muru Pariya, through Jail against the judgment and order dated CRREF/220/2008 3/22 JUDGMENT 15th March 2008 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Khambhalia, Dist: Jamnagar in Criminal Revision Application No.141 of 2007. By the said decision, the learned Judge was pleased to modify the order dated 26.11.07 passed by the learned Judicial Magistrate, First Class, Khambhalia, in Criminal Misc. Application No.127 of 2006. 3. Wife of the applicant and his minor children were granted maintenance under section 125 of the Criminal Procedure Code by the Judicial Magistrate at the rate of Rs.200 for the wife and Rs.250/- each for two children, thus totalling to Rs.700 per month. Since the applicant did not pay the maintenance regularly, his wife and children filed Criminal Misc. Application No.126 of 2006 before the learned Magistrate seeking recovery of accumulated outstanding amount of Rs.28,000/- for the period between 7.6.02 and 6.8.05 under section 125(3) of the Criminal Procedure Code. The said application was filed on 1st July 2006. Thereafter, another application being Criminal Misc. Application No.127/06 was also filed on 1.7.06 seeking recovery of Rs.7,700/- for the period between 7.8.05 to 7.6.06. For a total unpaid maintenance of Rs.35,700/- for a period of 49 months, the learned Magistrate issued warrant against the husband. Eventually, for non- payment of the said amount, he ordered that the husband shall serve rigourous imprisonment for a period of 980 days. 4. Against the said order of the learned Judicial Magistrate, First Class, the husband preferred Revision Application before the Sessions Court which came to be disposed of by the judgment dated 15.3.08. The learned Judge, though held that the Magistrate could have awarded sentence in excess of one month, concluded that the sentence of 20 days for each month of default was excessive and reduced the same to 15 CRREF/220/2008 4/22 JUDGMENT days' sentence for each month of default. 5. The husband approached this Court through jail and requested for reduction in sentence and for his release from jail. 6. While dealing with his Special Criminal Application, learned single Judge of this Court noticed two conflicting views of two learned Judges on the question whether under sub-section (3) of section 125 of the Criminal Procedure Code, Magistrate can impose sentence in excess of one month. Reference was made to the decision of the Apex Court in the case of Shahada Khatoon v. Amjad Ali, (1999) 5 SCC 672 wherein the Apex Court observed that “the language of sub-section (3) of section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for 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 or non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month.” Learned single Judge making reference noticed that in the case of Smt.Kalpana Jayeshkumar Thakkar v. State of Gujarat, rendered in Criminal Revision Application No.858 of 2004, learned single Judge of this Court had held that the Additional Sessions Judge had misread the decision of the Apex Court in Shahada Khatoon's case, to come to the conclusion that the Magistrate cannot impose sentence in excess of one month. The learned Judge also noticed another decision of the learned CRREF/220/2008 5/22 JUDGMENT single Judge of this Court dated 28th March 2001 in the case of Vali Mahmed Abdul v. State of Gujarat, rendered in Special Criminal Application No.172 of 2001 in which taking note of the decision of the Apex Court in Shahada Khatoon's case held that the Magistrate could not have sentenced the husband for a period exceeding one month for non-compliance of the order passed under section 125 of the Criminal Procedure Code. Finding that the earlier decision of the learned single Judge in Vali Mahmed Abdul (supra) was not brought to the notice of the Court in the case of Smt.Kalpana Jayeshkumar Thakkar and finding that the two learned single Judges of this Court have understood the decision of the Apex Court in Shahada Khatoon's case somewhat differently, the learned Judge made the reference and framed the question reproduced herein- above. 7. Before adverting to the submissions made by the learned Public Prosecutor and attempting to interpret the legal provisions, it would be useful to notice the provisions contained in section 125 of the Criminal Procedure Code. Section 125, insofar as relevant for our purpose, reads as follows:- “125.(1) If any person having sufficient means neglects or refuses to maintain -- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate child whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by CRREF/220/2008 6/22 JUDGMENT reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor famale child, if married, is not possessed of sufficient means: Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and the expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. Explanation: For the purpose of this Chapter -- (a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority; (b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2)Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or if so ordered, from the date of the application CRREF/220/2008 7/22 JUDGMENT for maintenance or interim maintenance and expenses of proceeding, as the case may be. (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: xxxxxx ” 8. Short legal controversy arising in this reference is whether in exercise of powers under sub-section (3) of section 125 of the Criminal Procedure Code, is it open for the Magistrate to sentence a defaulting husband in excess of one month when the default in making the payment exceeds one month. 9. Learned Public Prosecutor Shri Sunit Shah appearing with learned APP Shri Dipen Desai painstakingly took us through large number of decisions of various High Courts as well as the Apex Court, reference to which will be made at appropriate stages. It was primarily his contention that section 125 of the Criminal Procedure Code has been enacted for quick respite to destitute wives, minor children and aged parents who are unable to maintain themselves. Sub-section (3) of section 125 though provides for imprisonment for a term which may extend to one month, the same should be read in the context of the power of the Magistrate to impose such sentence for every breach of the CRREF/220/2008 8/22 JUDGMENT order. 10. Before interpreting the above provisions, we may note the decisions of the Apex Court as also the decisions of this Court on the issue. 10.1 In the case of Shahada Khatoon (supra), the Apex Court considering the question whether the learned single Judge of the Patna High Court correctly interpreted the provisions of sub-section (3) of section 125 of the Criminal Procedure Code by directing that the Magistrate can sentence only for a period of one month or until payment, if sooner made, observed as already noted, that language of sub-section (3) of section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. 10.2 In the case of Shantha v. B.G.Shivnanjappa, (2005) 4 SCC 468, the Apex Court observed that it must be born in mind that section 125 of the Criminal Procedure Code is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under section 125(1) is a continuing liability. It may, however, be noted that in the said case, earlier decision of Shahada Khatoon (supra) was not brought to the notice of the Apex Court. 10.3 In the case of Kuldip Kaur v. Surinder Singh, AIR 1989 SC 232, the Apex Court made the following observations: “Sentencing a person to jail is a 'mode of enforcement'. It is not a CRREF/220/2008 9/22 JUDGMENT '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. ........ ..... 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.” 10.4 Before the Apex Court delivered its judgment in Shahada Khatoon's case, learned single Judge of this Court in the case Bhana Rama v. Bal Ladu, 13 GLR 909, opined that the principle laid down by section 488(3) is that the Magistrate has the jurisdiction to award imprisonment to a defaulting husband in respect of default in payment of each month's arrears. As long as that principle is not violated, the Magistrate has the power to deal with a consolidated application for recovery of arrears for more than one month in such reasonable and just manner as he thinks fit. It was held held that there is no reason why the Magistrate cannot make on one application different orders for different periods of sentence thereby adjourning the matter from time to time and showing consideration and leniency to the defaulting husband. In the said case, however, the learned Judge noted that it was not in dispute that had the wife made 12 independent applications for recovery of arrears of 12 months, 12 orders could have been passed by the learned Magistrate in those applications directing the husband to pay the amounts claimed by the wife or in default of the payment awarding the husband independent sentences in respect of such 12 defaults. CRREF/220/2008 10/22 JUDGMENT 10.5 As already noted, learned single Judge of this Court in the case of Smt. Kalpana Jayeshkumar Thakkar (supra) was of the opinion that the Apex Court in Shahada Khatoon's case did not lay down that the Magistrate cannot impose imprisonment in excess of one month for default of payment of maintenance for several months. 10.6 In the case of Vali Mahmed Abdul v. State of Gujarat, (supra), the ratio in the case of Shahada Khatoon was understood differently and the learned single Judge was of the opinion that the Magistrate could not have sentenced the husband for a period exceeding one month. 10.7 In a judgment dated 23.8.07, passed in Special Civil Criminal Application No.894 of 2007, in the case of Mariyamben Abdulbhai Mansuri v. State of Gujarat, learned single Judge of this Court observed that both the courts below have materially erred in not passing the order of imprisonment of one month qua each default. 10.8 In an order dated 16.10.07 passed in Special Criminal Application No.1566 of 2007, learned single Judge of this Court made the following observations: “3. Under section 125(3) of the Criminal Procedure Code, powers of the competent court to send the defaulting party to jail are restricted and apparently no consolidated order of sending the petitioner to jail for a period of one year could have been passed. On this short ground alone, the petition is required to be allowed. However, it does not mean that wife is remedyless or that through other legal means, she cannot execute the order for payment of maintenance, if there are any arrears. The observations made in the previous paragraph also do not mean to suggest that if wife files periodical applications in case of default by the husband, the same cannot be entertained by the learned Magistrate even if case CRREF/220/2008 11/22 JUDGMENT under section 125(3) of the Criminal Procedure Code is made out.” 11. At this stage, we may note that before the decision of the Apex Court in the case of Shahada Khatoon (supra), almost unanimously all High Courts of the country had taken the view that it is open for the Magistrate to sentence the defaulting husband for a period in excess of one month if the default exceeds one month and the limitation on the power of the Magistrate to impose such a sentence not exceeding one month is relatable only to each month of default for payment of maintenance. However,the situation changed completely post Shahada Khatoon's decision and various High Courts have understood the ratio of the decision to mean that in any case the Magistrate cannot pass order of sentencing the husband in excess of one month. We will advert to these decisions at a later stage. 12. Sub-section (1) of section 125 makes a special provision for the Magistrate to award maintenance to a wife, parents, minor children or even major children not being a married daughter who by reason of any physical or mental abnormality or injury are unable to maintain themselves. Such a provision, as observed by the Apex Court in the case of Shantha v. B.G.Shivananjappa (supra) is a measure of social legislation enacted for the welfare and benefit of wife, minor children, infirm major children and aged parents who are unable to maintain themselves. 13. Sub-section (1) of section 125 empowers the Magistrate to provide for monthly allowance for maintenance at such monthly rate as the Magistrate thinks fit. The Magistrate can also award interim maintenance during the pendency of such proceedings as the CRREF/220/2008 12/22 JUDGMENT Magistrate may consider reasonable. 14. Sub-section (1) of section 125 thus provides for monthly allowance to be paid to the wife, children, mother or father, as the case may be, at such monthly rate as the Magistrate thinks fit. It can thus be seen that the maintenance that the Magistrate awards under section 125(1) becomes payable every month. Sub-section (3) of section 125 provides for summary procedure for recovery of such maintenance allowance so fixed by the Magistrate, if any person so ordered fails without sufficient cause to comply with the order. It is provided that in such a case, for every breach of the order, the Magistrate may issue 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 including interim maintenance remaining unpaid to imprisonment for a term which may extend to one month or until payment if sooner made. Sub-section (3) of section 125 thus empowers the Magistrate to award sentence upto one month for the whole or part of each month's allowance remaining unpaid. Limitation on the power of the Magistrate to impose imprisonment for a term not exceeding one month, therefore, has to be viewed in the background of the purpose for which such imprisonment is provided. As already noticed, section 125(1) refers to monthly allowance to be fixed by the Magistrate for maintenance of wife, child, father or mother on such monthly rate as the Magistrate thinks fit. Upon failure of a person to comply with such an order, it is open for the Magistrate for every breach of the order to issue warrant for levying the amount due and further to sentence such a person for the whole or any part of each month's allowance remaining unpaid to imprisonment for a term which may extend to one month. To our mind, CRREF/220/2008 13/22 JUDGMENT therefore, the Legislature never intended that regardless of the extent of the default on the part of the husband, the Magistrate can impose sentence only upto one month. True interpretation of section 125(3), in our view, would be that for each month of default in payment of maintenance, it is open for the Magistrate to sentence the defaulting person to imprisonment for a period of one month or until payment if sooner made. 15. The question can be looked from a slightly different angle. If for each month of default of payment of maintenance, the wife were to file separate applications before the Magistrate, surely, it would be open for the Magistrate to pass separate orders of sentences each not exceeding one month. If that be so, would it not be open for the wife to file one consolidated application for every month's default instead of filing separate application for each month of arrears and in such a situation, would it not be open for the Magistrate to pass one consolidated order of sentence upto a maximum one month for each month of default in payment of maintenance ? The answer obviously is in the affirmative as long as the application is made by the wife within one year from the date on which the amount has become due as provided under sub-section (3) of section 125. To our mind, the Apex Court in the case of Shahada Khatoon did not lay down that for every month's default, it is not open for the Magistrate to sentence the defaulting husband for more than one month. It is well settled that the decisions of the Apex Court are not to be interpreted like statutes. In the case of P.S.Sathappan v. Andhra Bank Ltd., AIR 2004 SC 5152, it was held that judgment of the Supreme Court must be read as a whole and the ratio therefrom is required to be culled out from reading the same in its entirety and not only a part of it. CRREF/220/2008 14/22 JUDGMENT 16. One may notice that the provision of section 125(3) of the Criminal Procedure Code insofar as the same is relevant for our purpose is similar to sub-section (3) of section 488 of the Criminal Procedure Code of 1882 which read as follows:- “The Magistrate may, for every breach of the order issue a warrant for levying the amount due in the manner hereinbefore provided for levying fines, and may sentence such person for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month.” Criminal Procedure Code 1882 replaced the old Criminal Procedure Code 1861. Similar provisions were made in section 316 of the Code of 1861. However, there were certain significant differences - Section 316 of the Code of 1861 read as follows: “The Magistrate may, for every breach of the order by warrant, direct the amount due to be levied in the manner provided for levying fines; or may order such person to be imprisoned with or without hard labour for any term not exceeding one month.” Comparing the two provisions, it can be seen that in section 488 of the Code of 1882, the Legislature added the words : “may sentence such person for the whole or any part of each month's allowance remaining unpaid”. Addition of words “of each month's allowance” are significant. Earlier provisions of section 316 of the Code of 1861 could have been interpreted as providing for the limitation on the power of the Magistrate to impose sentence for a term not exceeding one month regardless of the extent of the default. However, the Legislature CRREF/220/2008 15/22 JUDGMENT made the position clear in the later enactment by adding words “each month's allowance”. Modification in the provision was thus to remove a possible confusion. While understanding the existing provisions of section 125(3) which are in pari materia to section 488(3) of the Code of 1882, this important aspect has to be borne in mind. It may be noted that in the Criminal Procedure Code of 1898, these provisions were retained