IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO.174 OF 2010 Virendra Kumar @ Kukku ……… Revisionist (in Jail) Versus State of Uttarakhand & others …... Respondents Dated: October 27, 2010 Sri GC Lakchaura, learned counsel for the revisionist 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.), is directed against the order dated 15.4.2009 passed by Judge, Family Court, Camp Kashipur, Distt. US Nagar in Recovery Case No.298/2007, Smt. Kusumlata & another Vs. Virendra Kumar @ Kukku, whereby the Judge, Family Court sentenced the revisionist for twelve months’ simple imprisonment for not paying the maintenance for 24 months. 2. Heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the facts of the case are that respondent no.2 had filed an application u/s 125 Cr.P.C. for maintenance of herself and her minor daughter. The Family Court vide its order dated 5.10.05 granted maintenance @Rs.1500/- per month to the wife and Rs.700/- per month to her daughter. A total amount of Rs.2200/- was awarded to the mother and the daughter from the date of filing of the application. When the revisionist did not comply with the aforesaid order and did not pay the maintenance amount, hence she moved an application u/s 125(3) Cr.P.C. for recovery of Rs.53170/- against the revisionist. The revisionist stated before the trial court that he could not pay the aforesaid amount because he was in jail in another case instituted by his wife. However, on the said application, the trial court vide the impugned order awarded sentence of twelve months’ simple imprisonment against the revisionist because of non-payment of the maintenance amount, which in total amounted to Rs.53,710/-. Hence this revision. 2 4. Learned counsel for the revisionist drew attention of the Court towards Section 125(3) of the 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. Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.” 5. On the basis of the above said section, learned counsel for the revisionist submitted that for the application made for one time, only one month’s imprisonment could be awarded against the revisionist. I find substance in the argument raised by learned counsel for the revisionist that in default of payment of maintenance, on the application moved at one time, maximum imprisonment which could be awarded against the revisionist is one only month, however the trial court overlooked the said provision and did not apply its mind while passing the impugned order. Accordingly, the order dated 15.04.2009 passed by Judge, Family Court, Camp Court Kashipur, Distt. Udham Singh Nagar, for awarding twelve months’ imprisonment is illegal and not as per the law. 6. In view of what has been stated above, the revision is allowed. The impugned order is hereby quashed. However, the trial court is free to recover the amount as per the law. (Dharam Veer, J.) October 27, 2010 Rajeev Dang