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MANOJ KUMAR GUPTA Vs. KAMLESH KUMARI & ANR.

Judgements favoring men

 
Court:ALLAHABAD HIGH COURT

Bench: JUSTICE Surendra Kumar

MANOJ KUMAR GUPTA Vs. KAMLESH KUMARI & ANR. On 17 January 2012

Law Point:
Magistrate is fully competent to recover the maintenance amount remaining unpaid from husband and to pay the same to wife. — Magistrate is directed to issue recovery warrant for maintenance amount remaining unpaid and if warrant remains unexecutable by any other reason, then to sentence defaulting husband according to law.

 

 

JUDGEMENT

 

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 v. 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.

2. 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 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 (Maharashtra) was passed against his wife, which was not obeyed by the wife.

3. 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.

4. 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 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.

5. 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.

3.11.1993.

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.”

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

7. The Full Bench of this Court in the case of Emperor v. Beni, reported in AIR 1938 All. 386 (FB), 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.

8. The Full Bench of Bombay High Court in the case of Karson Ramji Chawda v. The State of Bombay, reported in AIR 1958 Bom. 99 (FB), in paragraph 2 observed that Sub-section (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 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.

9. 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.

10. A Division Bench of Calcutta High Court in Moddari Bin v. Sukdeo Bin, reported in AIR 1967 Cal. 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 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 sum 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.”

11. 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 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 Bom. 99 (FB) and AIR 1959 All. 556.

12. The Hon’ble Supreme Court in the case of Shahada Khatoon and Others v. Amjad Ali and Others, reported in I (2000) DMC 313 (SC)=IX (1999) SLT 392=IV (1999) CCR 268 (SC)= 1999 Cr.LJ 5060 (SC), 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.

13. The Hon’ble Supreme Court in the case of Shantha alias Ushadevi and Another v. B.G. Shivananjappa, II (2005) DMC 1 (SC)=IV (2005) SLT 292=II (2005) CCR 231 (SC)=2005 Cr.LJ 2615 (SC), 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.

14. 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.

15. The Full Bench of Gujarat High Court in the case of Suo Motu v. State of Gujarat, reported in 2009 Cr.LJ 920 (FB), 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 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.

16. 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 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 Sub-section (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.

17. 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.

18. 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 v. Budhu Ram, reported in AIR 1919 Lah. 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 cumulative warrant for the whole arrears and cumulative sentence of six months was illegal, was turned down.

19. Once again the learned Single Judge of the Lahore High Court in the case of Emperor v. Sardar Muhammad, AIR 1935 Lah. 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.

20. A Division Bench of the Rangoon High Court in the case of Ma Tin Tin v. 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.

21. The learned Single Judge of Nagpur High Court in the case of Emperor v. Badhoo Mandal, AIR 1949 Nag. 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.

22. The learned Single Judge of Mysore High Court in the case of Kantappa v. Sharanamma, AIR 1967 Mys. 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.

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

24. 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 cannot exceed one month.

25. Adopting the same view one learned Single Judge of Allahabad High Court in the case of Dilip Kumar v. Family Court, Gorakhpur, 2000 Cr.LJ 3893=2000 All.LJ 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.

26. 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 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.

27. 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.

28. In view of the aforesaid discussions and case law on the point in hand, the submissions of the learned Counsel for the revisionist cannot 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.

29. 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.

The revision petition being devoid of merits is accordingly dismissed.

Revision Petition dismissed.

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