S.125(3) CrPC | Magistrate Can't Order Imprisonment For More Than 12 Months' Default In Maintenance In A Single Application: Bombay High Court

The Bombay High Court ordered the release of a man sentenced to simple imprisonment of 47 months for of default in payment of interim maintenance awarded to his wife and daughter in a domestic violence case.

Justice Sharmila U Deshmukh observed that under section 125(3) CrPC, the power of the Magistrate to impose punishment of imprisonment for default is restricted to 12 months, as the proviso provides a limitation period of 12 months from the due date of payment.

“by limiting the application for issuance of warrant to a period of 12 months, the power of the Magistrate stands restricted to impose maximum punishment of imprisonment for period 12 months. If an application cannot be filed seeking warrant for recovery of amount remaining unpaid for period of more than one year, there is no question of imprisonment being imposed for a term exceeding one year. The period of 12 months is the outer limit”, the court observed.

The court clarified that while only 12 previous months of defaults can be clubbed in one application, imprisonment can be imposed for subsequent defaults in subsequent applications.

The court allowed a man's writ petition challenging an order of the Metropolitan Magistrate in domestic violence proceedings sentencing him to 47 months of simple imprisonment for defaulting on maintenance payments.

A case was filed by the respondent wife in 2018 under various provisions of the Protection of Women from Domestic Violence Act, 2005 (DV Act) seeking reliefs including maintenance for herself and their daughter. Initially, interim maintenance was granted to the tune of Rs. 15,000 per month for the wife and Rs. 10,000 per month for the daughter.

However, the petitioner failed to consistently make these payments, leading to a series of applications and ultimately the issuance of an arrest warrant and subsequent imprisonment order by the Metropolitan Magistrate. Thus, he filed the present petition challenging the sentence.

Advocate Himanshu S Shinde for the husbands argued that the magistrate's sentencing power is limited to one month for each month's default, with a maximum cap of 12 months as per the proviso to the section 125(3) of the CrPC.

On the other hand, advocate Bhuvan Singh for the wife contended that the DV Act, being civil in nature, allows for broader sentencing powers, not bound by the limitations of the CrPC.

The respondent wife sought an arrest warrant citing non-payment of maintenance for 59 months since the filing of the DV application in August 2018. Only Rs. 3,25,000 out of Rs. 11,50,000 had been paid till July, 2023 and thereafter at the time of sentencing the Petitioner was permitted to deposit a sum of Rs. 1,00,000. After these partial payments, the Magistrate sentenced the petitioner for default of 47 months' worth of payments.

The court observed that DV Act proceedings primarily offer civil remedies, with provisions allowing Magistrates to grant monetary reliefs, including maintenance. However, the Act does not specify mechanisms for enforcement of maintenance orders. Instead, it relies on provisions of the CrPC, with Rule 6(5) of the Rules of 2006 stating that applications under the DV Act shall be dealt with as per Section 125 of the CrPC.

Section 125(3) of the CrPC empowers Magistrates to issue warrants for levying unpaid maintenance amounts, with a maximum imprisonment term of one month per month of unpaid maintenance. The proviso restricts issuance of warrants beyond one year from the due date. The court clarified that while the proviso to Section 125(3) restricts the application for recovery of arrears to within one year, it also implies a limitation on the magistrate's sentencing power to a maximum of 12 months.

The court referenced previous judgments to support its interpretation that only 12 months of defaults can be clubbed in one application, with subsequent defaults requiring separate applications. The court also noted that the limitation applies regardless of whether the maintenance is for minors.

Regarding the present case, the court found that the Magistrate had failed to consider the 12-month limitation before sentencing the petitioner to 47 months' imprisonment. Consequently, the court quashed the impugned order and directed the petitioner's immediate release. However, it clarified that the respondent wife retains the right to file fresh applications for warrant issuance, subject to the limitation of 12 defaults being clubbed in one application, with the magistrate instructed to consider such applications accordingly.

Case no. – Writ Petition (St) No.2435 of 2024

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