# Harminder Kaur and others v. Union of

- **Citation:** (2012) 1 ILRA 33
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-17
- **Case number:** Criminal Revision No. 1712 of 1993
- **Bench:** Surendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harminder-kaur-and-others-v-union-of-42129
- **Pages:** 11

## Headnote

Code
of
Criminal
Procedure-Section125(3)-Recovery Warrant-for arrears of
unpaid
maintenance
amount-husband
inspite of having capacity failed to
deposit-order
passed
by
Magistrate
perfectly
justified-warrant
no
interference.
34 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Held: Para 29

In view of the aforesaid discussions and
case law on the point in hand, the
submissions of the learned counsel for
the revisionist can not be accepted. On
consideration
of
the
facts
and
circumstances of the case of the instant
revision and case law cited above, it is
held that the impugned order dated
27.9.1993 passed by the Magistrate is
perfectly just and legal and the same
suffers from no illegality or infirmity of
any kind. Since the husband/revisionist
herein
failed
to
pay
the
complete
outstanding amount of maintenance as
ordered by the learned Magistrate vide
order dated 18.8.1989 inspite of having
financial capacity and sufficient means
to pay the same had knowingly made
default in payment of the said amount,
the Magistrate is fully competent to
recover
the
maintenance
amount
remaining unpaid from the husband and
to pay the same to Smt. Kamlesh Kumari,
wife of the revisionist.
Case law discussed;
A.I.R. 1938 Allahabad 386 (Full Bench); AIR
1958 Bombay 99 (Full Bench) in paragraph 2;
AIR 1967 Calcutta 136 (DB); 1999 CRI.L.J.
5060; 2005 CRI.L.J. 2615 (Supreme Court);
2009 CRI.L.J. 920 (Full Bench); AIR 1919
Lahore, 197; AIR 1935 Lahore, 758; AIR 1941
Rangoon, 135; AIR 1949 Nagpur, 269; AIR
1967 Mysore 81; 1982 Cr.L.J. 2365; 1988 (2)
Crimes 33; 2000 Cri.L.J. 3893 (2000 All.L.J.
1812).

## Text

1 All] Manoj Kumar Gupta V. Smt. Kamlesh Kumari and anothers
33
 allowed
to
continue
obviously
with
cooperation of authorities who did not
admittedly follow prescribed procedure in
law
for
making
recruitment.
Such
appointments are in the teeth of Article 16
of the Constitution particularly when the
authority is "State" under Article 12 of the
Constitution. Considering such types of
appointments the Constitution Bench of
Apex Court in Secretary, State of
Karnataka Vs. Uma Devi (2006) 4 SCC 1
held:

"The High Courts acting under Article
226 of the Constitution, should not
ordinarily issue directions for absorption,
regularization or permanent continuance
unless the recruitment itself was made
regularly and in terms of the Constitutional
Scheme."

5. Subsequently in some matters the
observations made by Apex Court in para
53 of the judgment of Uma Devi (supra)
were sought to be construed as if the
persons even if their engagement made
without following procedure prescribed in
statute but continued for some times are
entitled
for
regularisation
but
this
misconstruction was clarified by Apex
Court in subsequent decisions, some of
which are, State of M.P. And others Vs.
Lalit Kumar Verma (2007) 1 SCC 575;
Rajasthan Krishi Vishva Vidyalaya,
Bikaner Vs. Devi Singh, (2008) 3 SCC
505; State of Karnataka Vs. G.V.
Chandrashekhar (2009) 4 SCC 342;
Harminder Kaur and others Vs. Union of
India and others (2009) 13 SCC 90;
Union of India & another Vs. Kartick
Chandra Mondal & another (2010) 2
SCC 422; Satya Prakash & others Vs.
State of Bihar & others (2010) 4 SCC
179; and, State of Rajasthan and others
Vs. Daya Lal & others, 2011(2) SCC 429.

6. The Apex Court consistently since
then has held that in absence of any
statutory provision if a person has been
engaged in a wholly illegal manner without
following procedure prescribed in statute
and in violation of Article 16 of the
Constitution, such person cannot be allowed
to be regularised as that would amount to
commanding the respondents to commit a
patent illegality which is unconstitutional
also.

7. In the circumstances, I do not find
any
right
of
petitioners
to
claim
regularisation and the process adopted by
respondents for filling up the vacancies by
advertisement cannot be faulted legally or
otherwise.

8. Dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2012

BEFORE
THE HON'BLE SURENDRA KUMAR,J.

Criminal Revision No. 1712 of 1993

Manoj Kumar Gupta

 ...Petitioner
Versus
Smt. Kamlesh Kumari and another

 ...Respondents

Counsel for the Petitioner:
Sri R.C. Gupta

Counsel for the Respondent:
A.G.A.

Code
of
Criminal
Procedure-Section125(3)-Recovery Warrant-for arrears of
unpaid
maintenance
amount-husband
inspite of having capacity failed to
deposit-order
passed
by
Magistrate
perfectly
justified-warrant
no
interference.
34 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Held: Para 29

In view of the aforesaid discussions and
case law on the point in hand, the
submissions of the learned counsel for
the revisionist can not be accepted. On
consideration
of
the
facts
and
circumstances of the case of the instant
revision and case law cited above, it is
held that the impugned order dated
27.9.1993 passed by the Magistrate is
perfectly just and legal and the same
suffers from no illegality or infirmity of
any kind. Since the husband/revisionist
herein
failed
to
pay
the
complete
outstanding amount of maintenance as
ordered by the learned Magistrate vide
order dated 18.8.1989 inspite of having
financial capacity and sufficient means
to pay the same had knowingly made
default in payment of the said amount,
the Magistrate is fully competent to
recover
the
maintenance
amount
remaining unpaid from the husband and
to pay the same to Smt. Kamlesh Kumari,
wife of the revisionist.
Case law discussed;
A.I.R. 1938 Allahabad 386 (Full Bench); AIR
1958 Bombay 99 (Full Bench) in paragraph 2;
AIR 1967 Calcutta 136 (DB); 1999 CRI.L.J.
5060; 2005 CRI.L.J. 2615 (Supreme Court);
2009 CRI.L.J. 920 (Full Bench); AIR 1919
Lahore, 197; AIR 1935 Lahore, 758; AIR 1941
Rangoon, 135; AIR 1949 Nagpur, 269; AIR
1967 Mysore 81; 1982 Cr.L.J. 2365; 1988 (2)
Crimes 33; 2000 Cri.L.J. 3893 (2000 All.L.J.
1812).

(Delivered by Hon'ble Surendra Kumar,J. )

1. Heard learned counsel for the
revisionist and learned A.G.A.

2. The husband Manoj Kumar Gupta,
who is revisionist, has filed this revision
petition in this Court, impleading his wife
Smt. Kamlesh Kumari as opposite party
no. 1 and II Additional Chief Judicial
Magistrate, Banda as opposite party no. 2,
against the order dated 27.9.1993 passed
by the II Additional Chief Judicial
Magistrate,
Banda
in
Case
No.
243/IX/1990-Smt. Kamlesh Kumari Vs.
Manoj Kumar Gupta, under Section 125(3)
Cr.P.C., Police Station Kotwali Nagar,
Banda, District Banda, by which recovery
warrant for the interim maintenance
amount remaining unpaid was directed to
be issued against the husband and
16.10.1993 was fixed for further orders in
the matter.

3. It appears that the wife was
awarded
interim
maintenance
since
18.8.1989 at the rate of Rs. 400/- per
month in the petition under Section 125
Cr.P.C. and the husband was directed to
pay the amount of maintenance to his wife.
The amount of maintenance became due
from 18.8.1989 to 31.7.1992, hence the
wife moved an application dated 31.7.1992
before the court below under Section
125(3) Cr.P.C. with the prayer that a
recovery warrant for Rs. 14,195/- be issued
against the husband. The husband filed
objections on 23.9.1993 against the said
application in the court below saying that
the said application was not maintainable
because the amount of maintenance only
up to the period of one year could be
recovered and recovery warrant could not
be issued for recovery of maintenance for a
period exceeding one year. The husband
also took plea that his suit for decree of
restitution of conjugal rights in the court at
Amarawati, the State of Maharshtra, was
decreed long back and by virtue of the said
decree, the wife was directed to live with
her husband and to perform conjugal rights
and duties with her husband but the wife
did not obey the decree without any
sufficient reason and the wife had deserted
him without any reasonable and sufficient
cause. The husband inter-alia took the plea
by way of filing objections that he
1 All] Manoj Kumar Gupta V. Smt. Kamlesh Kumari and anothers
35
ultimately filed a divorce petition under
Section 13 of the Hindu Marriage Act,
1955 which was allowed by the competent
court and the decree of divorce was passed
on 17.6.1986 dissolving the marriage. On
these grounds, the husband claimed that he
was not liable to pay any interim
maintenance to his wife as she had ceased
to his wife. He had deposited Rs.4,800/- as
interim maintenance for a period of one
year and he prayed for cancelling the
recovery warrant issued for recovery of
remaining sum. The wife in the lower court
moved another application stating therein
that the objections by the husband on the
wrong grounds were filed and the case of
maintenance is still pending against the
husband and the order dated 18.8.1989
awarding interim maintenance was in
existence and is still in existence. The
husband challenged the order of interim
maintenance by way of filing Criminal
Revision No. 121 of 1990 in the revisional
court, which was also dismissed by the
learned Sessions Judge, Banda vide
judgment and order dated 23.5.1992. The
husband in the court below clearly
admitted that the Sessions Judge neither
stayed the operation of the order by which
interim maintenance was allowed to the
wife nor the lower court proceedings were
stayed. It is evident from the impugned
order itself that the husband deposited a
sum of Rs. 4,800/- which was due for a
period of one year but he did not deposit
the
remaining
unpaid
amount
of
maintenance just on the ground that a
decree for restitution of conjugal rights
under Section 9 of the Hindu Marriage
Act, 1955 by the court at Amarawati
(Maharastra) was passed against his wife,
which was not obeyed by the wife.

4. The main submission of the
learned counsel for the revisionist husband
is that by virtue of provisions of Section
125(3) of Criminal Procedure Code, 1973
if the husband failed without sufficient
cause to comply with the order of the
maintenance, then the Magistrate may, for
every breach of the order can issue a
warrant for levying the amount due in the
manner provided for levying fines and can
sentence the husband for whole or any part
of each month's allowance remaining
unpaid after the execution of the warrant to
imprisonment for a term which can extend
to one month or until payment if sooner
made. No warrant could be issued for
recovery of the amount due unless the
application was made to the court to levy
such amount within a period of one year
from the date on which it became due. On
this ground, the impugned order is illegal,
unjust, improper and against the provisions
of law.

5. Learned A.G.A. taking me through
the impugned order and other material, has
submitted that this is a case of awarding
maintenance to the wife and the husband in
part compliance of the impugned order,
deposited only maintenance amount up to
the period of one year. The order of interim
maintenance was passed in the year 1989
and when the husband did not pay the
same within reasonable time, then the wife
had to move an application under Section
125(3) of the Criminal Procedure Code,
1973 with the prayer that the recovery
warrant for recovery of the aforesaid
amount for the aforesaid period against her
husband be issued. It was after the
impugned order dated 27.9.1993 that the
husband made only part payment namely
up to the period of one year to his wife. He
did not pay the remaining amount of
maintenance on the ground that a decree
for restitution of conjugal rights was
passed in his favour against his wife by the
36 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
District
Court,
Amarawati,
State
of
Maharashtra on 17.6.1986 and the wife did
not comply with that decree. Learned
A.G.A. has further submitted that since the
order awarding interim maintenance to the
wife and also the impugned order were in
existence against the husband revisionist,
he was bound to make payment of the
whole amount of interim maintenance so
as to prevent her from starvation but it was
the husband revisionist who had driven his
wife to the stage of starvation.

6. This criminal revision was filed in
this Court on 28.10.1993. This was
presented before the Court and this Court
on 3.11.1993 passed the following interim
order:-

"On steps issue notices to the
respondent No. 1 to show-cause against
the applicant. Summon the records of the
courts below.

In the meanwhile and till further
orders operation of the impugned order
dated 27.9.1993 shall remain stayed for a
period of 20 days from today. If within this
period the applicant deposits with the
Court below a sum of Rs.5600/- and
continues to deposit a sum of Rs. 400/-
every month as directed in the basic order
of the trial Court, the operation of the
order shall remain stayed till the disposal
of the stay application. In the event of
failure, there shall be no stay order.

3.11.93.

On the same day, the same Hon'ble
Judge passed the following order:-

After the above order, the learned
counsel stated that he does not press his
prayer for interim stay. The part of the
order "In the meanwhile.........." shall be no
stay order" and shall be deemed to have
been deleted."

7. Before coming to the point
involved in this case, I think it proper to
discuss the various case law on this point.

8. The Full Bench of this Court in the
case of Emperor Vs. Beni reported in
A.I.R. 1938 Allahabad 386 (Full Bench)
observed
that
the
intention
of
the
Legislature was to empower the Magistrate
after execution of one warrant only to
sentence a person, who has defaulted in the
payment of maintenance ordered under
Section 488 of the Criminal Procedure
Code, 1898 to imprisonment for a period
of one month in respect of each month's
default. The Section does not enjoin that
there should be a separate warrant in
respect of each term of imprisonment for
one month. In other words, where arrears
have been allowed to accumulate, the
Court can issue one warrant and impose a
cumulative sentence of imprisonment.

9. The Full Bench of Bombay High
Court in the case of Karson Ramji
Chawda Vs. The State of Bombay
reported in AIR 1958 Bombay 99 (Full
Bench) in paragraph 2 observed that Subsection (3) of Section 488 of the Criminal
Procedure Code, 1898 confers upon the
Magistrate two independent powers, one to
issue a warrant which has to be executed in
the manner laid down in the sub-section
and the other to sentence the person also in
the manner laid down in the sub-section.
The power of the Magistrate to sentence
the person failing to comply with the order
is not dependent upon the issue of the
warrant, or in other words, the issue of the
warrant is not a condition precedent to the
jurisdiction of the Magistrate to sentence
1 All] Manoj Kumar Gupta V. Smt. Kamlesh Kumari and anothers
37
the applicant. Therefore when so read it is
clear that the power to sentence is 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
or until payment if sooner made. These
words clearly lay down the power of the
Magistrate. The power of the Magistrate in
respect of whole or any part of each
month's allowance remaining unpaid to
sentence the person for a term not
exceeding one month.

10. In the reported case before the
Full Bench of Bombay High Court, the
petitioner was ordered by the Magistrate to
pay maintenance to his wife and daughter.
He made a default and failed to comply
with this order. The wife made an
application that there had been a default in
the payment for four months. The
Magistrate issued a warrant and the
warrant could not be executed as the
applicant had no property. The wife then
made an application under Section 488 (3)
of the Criminal Procedure Code, 1898 and
on that application, the Magistrate passed
an order sentencing the applicant to be
imprisoned for a term of 15 days in respect
of each month for which the allowance
remained unpaid. The Full Bench held that
the Magistrate was right in the order that
he passed.

11. A Division Bench of Calcutta
High Court in Moddari Bin Vs. Sukdeo
Bin reported in AIR 1967 Calcutta 136
(DB) while interpreting Section 488 of the
Criminal
Procedure
Code,
1898
in
paragraphs 14 and 17 had observed as
under:-

"(14) The next point raised in the
letter
of
reference
is
whether
the
punishment can be limited only to a period
of one month as the maximum under
Section 488 (3), Cri. P.C. The language of
the section has been quoted above. It
expressly provides that the Magistrate may
sentence such person for the whole or in
part of each months allowance to a term
which may extend to one month or until
payment if sooner made. The maximum of
one month, in our view, in this context and
on proper interpretation of the language of
the section is relatable to a period of the
arrear for one month. In other words,
default of one month is punishable by one
month's imprisonment and no more. If the
default is more than one month then the
imprisonment can be for as many months
of default subject to a maximum of 12
months. The question here is whether a
default of 9 months which had occurred
could be punishable with six months'
imprisonment which the Magistrate here
has ordered. On the authorities and on the
construction of Section 488 (3) Cri. P.C.
We have come to the conclusion that the
Magistrate can make an order for six
months' imprisonment for nine months
default. In fact the maximum imprisonment
which he on the present facts could have
given was 9 months, but he has given less.
Section 488 (1) of the Criminal Procedure
Code provides expressly for a monthly
allowance for the wife or the child at such
monthly rate not exceeding five hundred
rupees in the whole as the Magistrate
thinks fit. The second proviso to Section
488 (3) makes it clear that no warrant
shall be issued for the recovery of any
amount due under the 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. That
would indicate that at the most the wife
could only accumulate twelve months'
maintenance and no more and the
38 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Magistrate could give in such case at most
twelve months' imprisonment and no more.
The whole idea is to provide a speedy and
expeditious remedy. The idea is not to
permit
unnecessary
accumulation
of
maintenance for the simple reason that
maintenance is a current necessity and is
not to be used for making a claim in lump
after a long delay.

(17) Turning now to the question of
interpretation of the expression "after the
execution of the warrant in Section 488
(3), Cri. P.C. Mr. Sinha's contention
cannot succeed on the facts of this case in
challenging the Magistrate's order. No
doubt before the execution of the warrant
the
Magistrate
cannot
sentence
the
defaulter. But on the facts as we have
already recorded the distress warrant has
been executed. Execution of the warrant in
this case does not mean successful
execution of the warrant. It also includes
unsuccessful execution of the warrant
yielding no fruits. If the execution of the
warrant was always successful then
obviously there would be no further
question of sentencing the defaulter.
Besides, the sentence can be awarded by
the Magistrate under Section 488, Cri.
P.C. Which expressly provides for the case
even if the whole amount remains unpaid
after the execution of the warrant. That
must necessarily contemplate a case where
the whole of the amount due remains
unrealised after unsuccessful execution of
the distress warrant or the other warrant
under Section 386 (1) (b) of the Code of
Criminal Procedure. On the facts we have
come to the conclusion as already
indicated that the distress warrant issued
in this case has been unsuccessfully
executed and was infructuous. Therefore,
the Magistrate had the right to order a
sentence of imprisonment. Mr. Sinha also
suggested in argument that only the
distress warrant could not be executed, but
then the Magistrate should have followed
this by another kind of warrant to the
Collector under Section 386 (1) (b), Cri.
P.C. and it is only after having exhausted
both the warrants the Magistrate's right to
sentence could arise. That argument is
obviously unsound. The language of
Section 386 (1) of the Criminal Procedure
Code expressly uses the words:-

"Whenever an offender has been
sentenced to pay a fine, the Court passing
the sentence may take action for the
recovery of the fine in either or both of the
following ways............." and then follows
(a) method of issuing a warrant for the
levy of the amount by attachment and sale
of any movable property belonging to the
offender; and (b) method of issuing a
warrant to the Collector of the District
authorising him to realise the amount by
execution according to civil process
against
the
movable
or
immovable
property or both, of the defaulter. Having
regard to the language "either or both of
the following ways" it is plain that the
Magistrate is not compelled to start the (b)
method when the (a) method which he had
adopted previously had failed before he
could sentence a defaulter."

12. The Division Bench further
observed that Section 488 (3) of the
Criminal Procedure Code, 1898 does not
expressly lay down any requirement for
issuing a show cause notice. What is
implicit or is required, is the Magistrate's
satisfaction about the means of the
defaulter to comply with the order for
maintenance, where there are sufficient
materials before the Magistrate to come to
the conclusion that the defaulter had
sufficient means, but he is wilfully
1 All] Manoj Kumar Gupta V. Smt. Kamlesh Kumari and anothers
39
neglecting to comply with the order of
maintenance. Such notice to the defaulter
before issuing a warrant is not required
under Section 488 (3) of the Criminal
Procedure Code. The Division Bench
relied upon a Full Bench decision reported
in AIR 1958 Bombay 99 (FB) and AIR
1959 Allahabad 556.

13. The Hon'ble Supreme Court in
the case of Shahada Khatoon and others
Vs. Amjad Ali and others reported in
1999 CRI. L.J. 5060 (Supreme Court)
while interpreting the provisions of Section
125(3) of the Criminal Procedure Code,
1973 (2 of 194 Cr.P.C.) held that the
language of sub Section (3) of Section 125
Cr.P.C. 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 of non-compliance of
the order of the Magistrate the wife can
approach again to the Magistrate for
similar relief. By no stretch of imagination
the Magistrate can be permitted to impose
sentence for more than one month. The
Hon'ble Apex Court did not accept the
contention of the learned counsel for the
appellant that the liability of the husband
arising out of an order passed under
Section 125 Cr.P.C. to make payment of
maintenance is a continuing one and on
account of non payment there has been a
breach of the order and, therefore, the
Magistrate would be entitled to impose
sentence on such a person continuing him
in custody until payment is made.

14. The Hon'ble Supreme Court in
the case of Shantha alias Ushadevi and
another Vs. B.G. Shivananjappa, 2005
CRI. L.J. 2615 (Supreme Court) in
paragraph 8 observed that Section 125
Cr.P.C. 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. The Hon'ble Supreme
Court directed the Magistrate to take
appropriate steps under Section 125(3)
Cr.P.C. in case arrears of maintenance is
not paid.

15. The Hon'ble Supreme Court
further held that requirement of Section
125 Cr.P.C. is that the wife shall move an
application within a period of one year
from the date, the amount became due. It
was further observed that in order to seek
recovery of the amount due by issuance of
warrant as provided under Section 125
Cr.P.C., the application shall be made
within a period of one year from the date
the amount became due and if the husband
failed to pay maintenance.

16. The Full Bench of Gujarat High
Court in the case of Suo Motu Vs. State of
Gujarat reported in 2009 CRI. L.J. 920
(Full Bench) has observed in paragraphs
14 and 15 as under:-

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
40 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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 beach 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, 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 there from is required to be culled
out from reading the same in its entirety
and not only a part of it.

17. The Full Bench of Gujarat High
Court in this judgment in paragraph 16 has
explained the provisions of the Criminal
Procedure Code, 1861 and Criminal
Procedure Code, 1882. The relevant
1 All] Manoj Kumar Gupta V. Smt. Kamlesh Kumari and anothers
41
portion of the paragraph 16 is quoted
below:-

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 subsection (3) of section 488 of the Criminal
Procedure Code of 1882 which reads 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 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 reads 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 many 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 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 in same terms as in the Code
of 1882.

18. The Full Bench of Gujarat High
Court in the said judgment in paragraph 17
has clearly laid down that in the aforesaid
decision of Shahada Khatoon, the Hon'ble
Supreme Court did not lay down the
proposition that under sub-section (3) of
section 125 of the Criminal Procedure
Code, it is not open for the Magistrate to
pass a consolidated order of sentencing the
defaulting husband in excess of one month
for several months of defaults.

19. It has been noticed that almost
unanimous view of all the High Courts
before Shahada Khatoon's case (supra) was
that it is open for the Magistrate to award
sentence in excess of one month in case of
several months of default. The learned
Single Judge of Lahore High Court in the
case of Emperor Vs. Budhu Ram reported
in
AIR
1919
Lahore,
197
while
interpreting pari materia provisions of
Section 488 (3) of the Criminal Procedure
Code, 1898 upheld the sentence of six
months imposed on a husband for several
months of default. The contention that
42 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
cumulative warrant for the whole arrears
and cumulative sentence of six months was
illegal, was turned down.

20. Once again the learned Single
Judge of the Lahore High Court in the case
of Emperor Vs. Sardar Muhammad, AIR
1935 Lahore, 758 observed that the
husband can be committed to prison for a
term amounting to whole or any part of
each month's allowance remaining unpaid,
after execution of the warrant. In that case,
six month's allowance was outstanding, it
was observed that he could be committed
to prison for six months.

21. A Division Bench of the
Rangoon High Court in the case of Ma Tin
Tin Vs. Maung Aye, AIR 1941 Rangoon,
135,
observed
that
the
Legislature
introduced words capable of meaning that
as many months imprisonment as there
were defaults could be imposed and the
Court should construe the Act as to make
that remedy effective. The Division Bench
upheld the power of the Magistrate to
impose sentence in excess of one month
for arrears exceeding a month.

22. The learned Single Judge of
Nagpur High Court in the case of Emperor
Vs. Badhoo Mandal, AIR 1949 Nagpur,
269 held that one month's imprisonment is
not the maximum sentence that can be
awarded by the Magistrate and where more
than one month's maintenance allowance
remains unpaid, imprisonment for more
than one month can be awarded by the
Magistrate.

23. The learned Single Judge of
Mysore High Court in the case of
Kantappa Vs. Sharanamma, AIR 1967
Mysore 81, held that the Magistrate has to
compute the term of imprisonment with
reference to each month's imprisonment
and then pass a cumulative sentence.

24. The Similar view was taken in G.
Pratap Reddy Vs. G. Vijayalakshmi, 1982
Cr. L.J. 2365 and Kashmir Singh Vs.
Kartar Kaur, 1988 (2) Crimes 33,
observing that the Magistrate can pass
sentence up to one month for each month's
unpaid allowance.

25. Here it may be mentioned that it
was after the decision of the Apex Court in
the case of Shahada Khatoon (supra) 1999
AIR SCW 4880 the different High Courts
have viewed the situation differently and
then following the decision in the case of
Shahada Khatoon (supra), some of the
High Courts adopted the view that the
Magistrate
could
not have
awarded
punishment for a period of 12 months at a
time
and
that
the
detention
and
imprisonment for failure of the husband to
pay maintenance can not exceed one
month.

26. Adopting the same view one
learned Single Judge of Allahabad High
Court in the case of Dilip Kumar Vs.
Family Court, Gorakhpur, 2000 Cri. L. J.
3893 (2000 All. L.J. 1812) held that for
default of payment of maintenance,
confinement can be only for a period of
one month and no composite order for
confinement can be passed.

27. It can thus be seen that prior to
the decision of the Apex Court in Shahada
Khatoon's
case,
almost
unanimously
different High Courts of the country had
held that limitation on power of the
Magistrate to impose sentence up to
maximum of one month is relatable to each
month
of
default
in
payment
of
maintenance and that subject to the
1 All] Uttar Pradesh State Road Transport Corporation, Meerut V. Shouraj Singh and others
43
limitation prescribed in proviso to sub
Section (3) of Section 125 of the Code of
the Criminal Procedure, 1973, it is open for
the Magistrate to impose sentence up to
maximum of one month for each month of
default and that a composite order of this
nature can be passed by the Magistrate.

28. The Hon'ble Supreme Court in
the case of Shahada Khatoon (supra) did
not lay down the ratio that regardless of the
extent of default on the part of the husband
in paying maintenance, the Magistrate can
impose imprisonment of maximum of one
month.

29. In view of the aforesaid
discussions and case law on the point in
hand, the submissions of the learned
counsel for the revisionist can not be
accepted. On consideration of the facts and
circumstances of the case of the instant
revision and case law cited above, it is held
that the impugned order dated 27.9.1993
passed by the Magistrate is perfectly just
and legal and the same suffers from no
illegality or infirmity of any kind. Since
the husband/revisionist herein failed to pay
the complete outstanding amount of
maintenance as ordered by the learned
Magistrate vide order dated 18.8.1989
inspite of having financial capacity and
sufficient means to pay the same had
knowingly made default in payment of the
said amount, the Magistrate is fully
competent to recover the maintenance
amount
remaining
unpaid
from
the
husband and to pay the same to Smt.
Kamlesh Kumari, wife of the revisionist.

30. The learned Magistrate concerned
is directed to issue recovery warrant for the
maintenance amount remaining unpaid
according to law discussed above and if
the warrant remains unexecutable by any
other reason, then to sentence the
defaulting husband according to law.

31. The revision petition being
devoid of merits is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2012

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 1787 of 2012

Uttar Pradesh State Road Transport
Corporation, Meerut

 ...Petitioner
Versus
Shouraj Singh and others ...Respondents

Counsel for the Petitioner:
Sri J.N. Singh

Counsel for the Respondents:
Sri S.M.N. Abbas Abedi
C.S.C.

U.P. Industrial Dispute Act-1942-Section
33-C-direction to give salary illegally
with-held-order passed by prescribed
authority-challenged on ground without
adjudication-direction
for
salaryexecution
under
section
33-C-not
maintainable-where inspite of repeated
direction of High Court work man not
allowed light work-non payment of
salary
during
intervening
period-no
dispute
of
employee-employer
relationship-direction under section 33-C
held-proper.

Held: Para 7

Admittedly, this Court vide order dated
21.04.2000 directed the Corporation to
assign
some
lighter
work
to
the
respondent, which was not followed and
another order dated 05.05.2000 was
passed
directing
the
respondentworkman to resume the duties of driver