1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.189 OF 2009 WITH CRIMINAL WRIT PETITION NO.190 OF 2009 Vilas Murlidhar Bhusare ..Petitioner (in both the petitions) versus Mrs.Seema Vilas Bhusare and others ..Respondents (in both the petitions) Sagar Kasar i/by Sandeep K. Shinde for petitioner. S.M.Sabrad for respondent no.1. H.J.Dedhia, APP for State. CORAM : A.S.OKA, J. DATE : 17th July 2009 PC :- 1. The submissions of the learned counsel appearing for the parties were heard on the last occasion. However, order was not passed to enable the petitioner to comply with the requirement of depositing the amount. Today, the petitioner has not come forward to make a statement of deposit of the requisite amount. 2. The controversy involved in these two petitions is very narrow. The petitioner is the husband. The first respondent is the wife of the petitioner. 2 There was an order passed by the Judicial Magistrate, First Class directing the petitioner to pay monthly maintenance of Rs.250/- to the first respondent-wife and Rs.150/- to the second respondent-daughter. The first and second respondents filed an application for enhancement of maintenance. The said application was allowed and maintenance @ Rs. 1,500/- per month was granted by the learned Magistrate to the first and second respondents. In the revision preferred by the petitioner against the said order of enhancement, the order of enhancement was modified only to the extent that the enhanced amount was made payable from the date of order. Miscellaneous Application No.80 of 2005 was filed by the first respondent before the learned Magistrate. There was another application being Miscellaneous Application No.105 of 2006 filed by the first respondent. In Miscellaneous Application No.80 of 2005 the only grievance made by the first respondent was that the petitioner did not pay the maintenance amount for the period from 18th November 2002 to 18th June 2005. The grievance made in the other miscellaneous application is regarding the arrears for a further period of six months. An order was passed on 24th September 2007 on Miscellaneous Application No.80 of 2005 directing that the warrant should be issued against the petitioner for deposit of Rs.42,000/-. It was directed that if the amount was not paid within the stipulated time, the petitioner will have to undergo simple imprisonment for 56 days i.e. imprisonment for seven days per default of every month. In the other miscellaneous application, an order was passed on the same day. It was directed that if the petitioner fails to deposit a sum of Rs.26,000/- within stipulated time, he will have to 3 undergo imprisonment for 56 days. 3. It must be stated here that on 18th June 2003, an order was passed by this Court directing the petitioner to provide all the details of the maintenance amount, if paid by the petitioner. On the next date i.e. on 2nd July 2009 it was found that the petitioner had not complied with the orders. 4. The main submission of the learned counsel appearing for the petitioner is based on the decision of this Court in the case of Sanjay Sakharam Dongare Vs. Jyoti Sanjay Dongare and others (2003[4]- Mh.L.J.-319). The view taken by this Court is that for non compliance of an order of maintenance, the learned Magistrate cannot award imprisonment exceeding one month at a given point of time. This Court held that if after expiry of imprisonment order if the order of maintenance is not complied with, it will always be open for the applicant-wife to again approach the learned Magistrate for the similar relief. This Court placed reliance on the decision of the Apex Court in case of Shahada Khatoon and others Vs. Amjad Ali and others ([1999]5-SCC-672). He, therefore, submitted that the order of learned Magistrate is illegal. The learned counsel for the first and second respondents placed reliance on a decision of Division Bench of this Court in case of Gorakshnath Khandu Bagal Vs. State of Maharashtra and others (2005[2]-Bom.C.R.[Cri]-913) wherein after considering the said decision of the Apex Court in case of Shahada Khatoon (supra) it was held by the Division Bench that in case of arrears 4 for more than one month, then imprisonment excluding one month may be granted and such imprisonment may over all extend upto 12 months. He, therefore, submitted that there was no illegality in the impugned order. 5. I have carefully considered the submissions. It is not in dispute that both the orders dated 24th September 2007 which are impugned in these petitions have not been fully complied with by the petitioner. After considering the decision of the Apex Court in the case of Shahada Khatoon (supra), this Court in the case of Sanjay Dongare (supra), learned single judge observed thus:- "6. ... ... ... In other words, Magistrate cannot award punishment for a period of twelve months for different periods at one time. Understood thus, the orders passed by the Magistrate on 29th May, 2000, which has been confirmed by the Sessions Court on 20th October, 2000 would stand modified in terms of the decision of the Apex Court in other words, the petitioner shall suffer imprisonment in terms of order dated 29th May, 2000 for a period of one month, and on expiry of that period, if the petitioner fails to comply with the maintenance order, it will be open to the respondents 1 to 3 to approach the Magistrate for similar relief." However, after considering the same decision of the Apex Court what is held by the Division Bench in the case of Gorakshnath Khandu Bagal (supra) is as under :- "9. However, we have noted that the controversy involved for the said reference has been decided by the Apex Court in the case of Shahada Khatoon vs. Amjad Ali, referred to above. Since we have distinguished the judgement of Shahad Khatoon vs. Amjad Ali, taking into 5 consideration facts of the present case and also by making reference to the language of section 125(3) and the proviso referred thereto and also from form of warrant provided under Schedule-II in Form No.18, we record our finding that the Magistrate can impose a punishment for default of each month or a part of each month's default in payment of default, by awarding imprisonment for a period of one month or till the payment is made, which ever is sooner. If there are arrears for more than one month then the imprisonment exceeding for a period of one month can be imposed. However, what we find that the proviso contemplates application within 12 months and thereby at the most, in one application 12 defaults can be clubbed together and after every 12 defaults, a separate application will have to be filed. However, in that eventuality in each application, as there are maximum 12 defaults, the Magistrate may impose imprisonment extending up to a period of 12 months, but that is outer limit. The lesser imprisonment can be imposed and such imprisonment will be followed until the payment is made, that means, if the amount is paid during the period of imprisonment, the person will have to be released immediately. ... ..." (emphasis added) 6. Thus, the view taken by the Division Bench is that the imprisonment for a period of 12 months is the outer limit and in a given case a lesser imprisonment can be imposed. 7. Coming back to the facts of present case, on the same day the learned Magistrate by two separate orders has directed the petitioner to undergo imprisonment for 56 days. There is no direction that the sentences will run concurrently. In the facts of the case, it appears that during pendency of these petitions some amounts have been deposited by the petitioner. Considering the facts peculiar to this case, the sentences fixed for both the cases will have to be reduced to simple imprisonment for a period of thirty days and both the sentences will have 6 to run concurrently. 8. Hence, the petitions must succeed in part and I pass following order :- (a) The impugned orders dated 24th September 2007 are modified and it is directed that the petitioner is sentenced to undergo the sentence of simple imprisonment for thirty days in each case. As the impugned orders have been passed on the same day, the sentences will run concurrently; (b) If the petitioner fails to comply with the orders of deposit of Rs. 42,000/- and Rs.26,000/- respectively within a period of six weeks from today, the concerned Court will issue conviction warrant to the petitioner and the petitioner will have to undergo the sentence; (c) It is clarified that if within the period of sentence of thirty days, the petitioner pays the entire balance amount, he shall be forthwith released. (A.S.OKA, J.)