# Shiv Chand Revisionist v. State of U.P. and another Opp. Parties

- **Citation:** High Court of Judicature at Allahabad #42950
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-16
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-chand-revisionist-v-state-of-u-p-and-another-opp-parties-42950
- **Pages:** 4

## Headnote

Code of Criminal Procedure- Section
125(3)-Execution of maintenance orderby impugned order the Magistrate by
composite order imposed punishment -
one year. R.I.-arrear of maintenance
more than 60 month-held-Magistrate can
impose punishment one month R.I. or till
payment of Maintenance amount-order
impugned not sustainable quashed-with
liberty to the wife to approach before the
Magistrate to issue fresh warrant for
recovery of unpaid amount.

Held: Para-10
The provisions of Section 125(3) Cr.P.C.
are clear that an application for recovery
of maintenance amount can be moved
for arrears of 12 months. It is also
settled position of law that once the
execution application has been filed and
the husband is in default of payment of
maintenance, then separate execution
proceedings are not required to be
launched but they may continue in the
same execution application. But as far as
the imprisonment in default of payment
of maintenance is concerned, that may
extend to one month or until payment if
sooner made. It is also clear from the
language of the provisions of Section
125(3) Cr.P.C. that for every breach of
order, a warrant can be issued. In view
of the pronouncement of the Hon'ble the
Apex Court in Shahada Khatoon Vs.
Amjad Ali (supra), the powers of the
Magistrate
cannot
be
enlarged
and
therefore, the only remedy would be
after expiry of one month. For breach or
non
compliance
of
the
order
of
Magistrate the wife can approach the
Magistrate again for similar relief. The
Magistrate is not empowered to impose
composite sentence for more than one
month.

Case Law discussed:
(1999) 5 SCC, 672

## Text

576 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
had fraudulent or dishonest intention at
the time of making the promise. From his
mere
failure
to
keep
up
promise
subsequently such a culpable intention
right at the beginning, that is, when he
made the promise cannot be presumed."

22. In Mohd. Ibrahim and others
Vs. State of Bihar and another (2009) 8
SCC 751, the Hon'ble Apex Court has
held that if what is executed is not a false
document, there is no forgery. If there is
no forgery, then neither Section 467 nor
Section 471 of the Code are attracted.

23. In view of the above, the present
dispute is purely of civil nature and
opposite party no.2 has already instituted
a civil suit for cancellation of the sale
deed, therefore, initiation of criminal
proceedings by the opposite party against
the revisionists is clearly an abuse of
process of the Court.

24. It is yet to be decided that
whether the revisionists have sold their
share or have exceeded their share
without any sufficient ground. The share
of the parties can be decided by the court
of competent jurisdiction and the sale
deed at this stage cannot be said to be a
false document or a document executed
with the intention to commit forgery.
Respective parties shall have the full
opportunity to prove their share before the
civil court and at this stage, it cannot be
said that what amount of share the
respective parties have in the property in
disputed.

25. For the aforesaid reasons, I am of
the opinion that the civil dispute between
the parties has been given a criminal
colour and the fact of pendnecy of civil
suit has also been concealed in the
application under Section 156(3) Cr.P.C.
given on 9.10.2009 while the civil suit has
already been filed on 3.7.2009 i.e. much
prior to the aforesaid application under
Section 156(3) Cr.P.C. The pendency of
the civil suit has also not been brought to
the notice of the court which has passed
the summoning order.

26. Hon'ble the Apex Court in
Indian Oil Corporation Vs. NEPC India
Ltd. and others (supra) has further held
that any effort to settle the dispute and
claim which do not involve any criminal
offence by applying pressure through
criminal
prosecution,
should
be
deprecated and discouraged.

27. In view of Devendra and others
Vs. State of U.P. and another (supra), if
somebody is aggrieved by the false
assertion made in the said sale deed, he
would be the vendees and not the cosharers.

28. For the facts and circumstances
mentioned above, the revision is allowed
and the orders dated 4.3.2010 and
9.7.2010 passed by A.C.J.M.-II, Jaunpur
in Case No.854 of 2010 "State Vs. Ram
Singh" arising out of Crime No.1163 of
2009 are hereby set-aside.

29. In view of the above, Criminal
Misc. Application U/s 482 Cr.P.C.
No.15075 of 2010 and Criminal Misc.
Application U/s 482 Cr.P.C. No.39256 of
2012 regarding the same Crime No.1163
of 2009 are also disposed of accordingly.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.04.2013

BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.
1 All Prithvi Pal Singh and another Vs. State of U.P. and others
577

Criminal Revision No. 3421 Of 2010

Shiv Chand ...Revisionist
Versus
State of U.P. and another ...Opp. Parties

Counsel for the Revisionist:
Dr. S.B. Singh

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure- Section
125(3)-Execution of maintenance orderby impugned order the Magistrate by
composite order imposed punishment -
one year. R.I.-arrear of maintenance
more than 60 month-held-Magistrate can
impose punishment one month R.I. or till
payment of Maintenance amount-order
impugned not sustainable quashed-with
liberty to the wife to approach before the
Magistrate to issue fresh warrant for
recovery of unpaid amount.

Held: Para-10
The provisions of Section 125(3) Cr.P.C.
are clear that an application for recovery
of maintenance amount can be moved
for arrears of 12 months. It is also
settled position of law that once the
execution application has been filed and
the husband is in default of payment of
maintenance, then separate execution
proceedings are not required to be
launched but they may continue in the
same execution application. But as far as
the imprisonment in default of payment
of maintenance is concerned, that may
extend to one month or until payment if
sooner made. It is also clear from the
language of the provisions of Section
125(3) Cr.P.C. that for every breach of
order, a warrant can be issued. In view
of the pronouncement of the Hon'ble the
Apex Court in Shahada Khatoon Vs.
Amjad Ali (supra), the powers of the
Magistrate
cannot
be
enlarged
and
therefore, the only remedy would be
after expiry of one month. For breach or
non
compliance
of
the
order
of
Magistrate the wife can approach the
Magistrate again for similar relief. The
Magistrate is not empowered to impose
composite sentence for more than one
month.

Case Law discussed:
(1999) 5 SCC, 672

(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. Heard learned counsel for the
revisionist and the learned AGA.

2. This criminal revision has been
filed against order dated 26.7.2010 passed
by Judicial Magistrate, Mau, in case
no.4001 of 2006 Pyari Vs. Shiv Chand by
which the revisionist has been directed to
be detained in jail for one year rigorous
imprisonment for default of payment of
amount of maintenance.

3.

Learned
counsel
for
the
revisionist has submitted that under the
provisions that Section 125(3) of the
Cr.P.C., a Magistrate has no jurisdiction
to impose punishment for a term which
may extend to one month or until
payment if sooner is made. It has also
been submitted that a Magistrate cannot
impose a composite sentence for the
default and he is obliged to pass separate
orders for separate defaults.

4. Learned AGA has defended the
impugned order.

5. The Execution Case No.4001 of
2006 Pyari Vs. Shiv Chand was pending
before the Court of Judicial Magistrate,
Mau in which the application was
submitted on behalf of the applicant that
the opposite party was directed to pay a
578 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
sum of Rs.500/- and Rs.300/- to the
applicant nos.1 and 2 as maintenance
which was modified to Rs.600/- per
month. In compliance of the order of the
Court, the revisionist has paid on
26.10.2006 Rs.600/- as maintenance and
after that no maintenance has been paid.
Therefore, there
were
dues
against
revisionist
from
22.11.2005
to
22.11.2010. It was also stated that on
11.8.2008 the revisionist-opposite party
has been released from jail after a period
of one month but still a sum of
Rs.48,000/- is due against him. Regarding
which he was again detained into custody
since 30.6.2010. Learned Magistrate after
considering
all
the
facts
and
circumstances has directed that the
revisionist-opposite party shall undergo
one year rigorous imprisonment and
whatever amount shall be received by the
work done by the revisionist, shall be paid
to the applicant.

6.

Learned
counsel
for
the
revisionist has relied upon Iftekhar
Husain Vs. Smt. Hameeda Begum 1980
Cri.L.J., 1212 in which, this Court has
held that Section 125(3) Cr.P.C. limits the
power of the Magistrate to sentence the
defaulter for the whole or any part of each
months allowance remaining unpaid, after
the
execution
of
the
warrant,
to
imprisonment for a term which may
extend to one month or until payment, if
made sooner.

7.

Learned
counsel
for
the
revisionist has further relied upon Dilip
Kumar Vs. Family Court, Gorakhpur,
2000 Cri.L.J. 3893 in which, this Court
has considered the scope of Section
125(3) Cr.P.C., has held as under :-

"From these it is clearly available
that the person can be kept under
confinement for each months default and
the confinement can be only for period of
a month. The subsequent part "until
payment if sooner made" further clarifies
the situation to the extent that such a
husband can be confined to a period of
one month even if the default is of more
than a month and he can be allowed to
come out of jail if the payment is made
within this period on any date his
confinement will come to an end. The
purpose
behind
this
enactment
of
provision for confinement is to put an end
to the sufferings of the wife by
compelling the husband to pay the
maintenance amount."

8.

Learned
counsel
for
the
revisionist
has
further
relied
upon
Shahada Khatoon Vs. Amjad Ali (1999)
5, SCC, 672 in which, Hon'ble the Apex
Court has held as under:-

"The short question that arises for
consideration is whether the Learned
Single Judge of the Patna High Court
correctly interpreted Ss (3 of Section 125
of Criminal Procedure Code by directing
that the Magistrate can only sentence for a
period of one month or until payment, if
sooner made. The learned counsel counsel
for the appellants contends that the
liability of the husband arising out of an
order passed under section 125 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. We are unable to accept this
contention of the learned counsel for the
appellants. The language of Ss 3 of
1 All Shiv Chand Vs. State of U.P. and another
579
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, is 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. In that view of the matter
the High Court was fully justified in
passing the impugned order and we see no
infirmity in the said order to be interfered
with
by
this
Court.
The
appeal
accordingly fails and is dismissed."

9. In the present case, the Judicial
Magistrate, Mau has passed a composite
order of one year rigorous imprisonment
for the default of payment of maintenance
of Rs.48,000/- relating to 60 months.

10. The provisions of Section 125(3)
Cr.P.C. are clear that an application for
recovery of maintenance amount can be
moved for arrears of 12 months. It is also
settled position of law that once the
execution application has been filed and
the husband is in default of payment of
maintenance, then separate execution
proceedings are not required to be
launched but they may continue in the
same execution application. But as far as
the imprisonment in default of payment of
maintenance is concerned, that may
extend to one month or until payment if
sooner made. It is also clear from the
language of the provisions of Section
125(3) Cr.P.C. that for every breach of
order, a warrant can be issued. In view of
the pronouncement of the Hon'ble the
Apex Court in Shahada Khatoon Vs.
Amjad Ali (supra), the powers of the
Magistrate
cannot
be enlarged
and
therefore, the only remedy would be after
expiry of one month. For breach or non
compliance of the order of Magistrate the
wife can approach the Magistrate again
for similar relief. The Magistrate is not
empowered to impose composite sentence
for more than one month.

11. In the present case, the
composite sentence of one year has been
awarded which can not be sustained in
view of the clear provisions of Section
125(3) Cr.P.C. and the law laid down by
Hon'ble the Supreme Court in Shahada
Khatoon Vs. Amjad Ali (supra) therefore,
the impugned order dated 26.7.2010 is
liable to be set aside.

12. However, the wife-opposite
party no.2 shall be at liberty to move
application for recovery of remaining
amount of maintenance and can pray the
Court to issue a warrant in accordance
with law.

13. For the facts and circumstances
mentioned
above,
the
revision
is
accordingly allowed and orders dated
26.7.2010 is set aside.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.04.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Service Single No. 5665 Of 1994.

Shiv Ram Verma ...Petitioner
Versus
U.P.Coop. Union Ltd. & Ors. ...Respondents