Court:HIGH COURT OF JHARKHAND
Bench: JUSTICE Rongon Mukhopadhyay
Ramdhani Sah vs. State of Jharkhand and Ors. On 22 June 2016
Maximum period for which a person against whom realisation of arrears of maintenance amount is due, has been taken into custody can be for a period of one month and not beyond that.
1. Heard Mr. Purnendu Kumar Jha, learned counsel for the petitioner and Mr. Arbind Kumar, learned counsel for the opposite party No. 2. This writ application has been preferred by the petitioner for releasing the petitioner from custody on account of non-payment of monthly maintenance.
2. It has been submitted by the learned counsel for the petitioner that the petitioner has been taken into judicial custody since 03.07.2015 on the application made by the opposite party No. 2 for execution of the order of maintenance passed on 23.07.1986. He further submits that in terms of the proviso to sub-section (3) of the Section 125 of the Cr.P.C., learned court below was precluded from issuing any warrant of arrest for recovery of any amount as the application for execution of the order of maintenance was made much after the statutory period of one year for making such application from the date it had become due. It has also been submitted that sub-section (3) of Section 125 of Cr.P.C. categorically states that for any amount remaining unpaid and after execution of the warrant, the imprisonment of such person can be only for a period of one month or sooner if the payment is made. It has been submitted that the petitioner cannot be kept in custody for an indefinite period in view of the specific bar in terms of Section 125(3) of the Cr.P.C. In support of his contention, learned counsel has also referred to the judgment rendered by the Hon’ble Patna High Court in the case of “Laljee Yadav v. The State of Bihar & others”, reported in MANU/BH/1281/2011 : 2011(4) PLJR 248.
3. Mr. Arbind Kumar, learned counsel for the opposite party No. 2 has submitted that a huge amount was due from the petitioner which resulted by the opposite party No. 2 in filing an application for realisation of the amount and rightly the petitioner was taken into custody. It has also been submitted that the last payment which was made to the petitioner was on 08.01.1999 and since then he has refused to make payment of maintenance to the opposite party No. 2. Learned counsel therefore, submits that the writ application in the facts and circumstances deserves to be dismissed.
4. It appears that on 23.07.1986 on an application filed by the petitioner, an order for maintenance at the rate of Rs. 500/- per month was made. The order of maintenance was challenged by the petitioner before the Hon’ble Patna High Court in Criminal Revision No. 8930 of 1987 in which after hearing the parties, maintenance was reduced to Rs. 350/- per month. On 25.06.2014, an application was made by the opposite party No. 2 for realisation of an amount of Rs. 1,16,700/-. Based on the said application, an order dated 03.07.2015 was passed in which the petitioner was remanded to judicial custody. Learned counsel for the petitioner has submitted that on account of non-payment of arrears of maintenance, the petitioner still continues to remain in custody. Sub-section (3) of Section 125 of Cr.P.C. clearly states that for recovery of an amount and after execution of the warrant such person may be imprisoned for a term of only 1 month or for the period until payment if sooner made. The said provision therefore, clearly lays down that there cannot be an indefinite order of imprisonment till the payment is made or for that matter the period of imprisonment for one month cannot be stretched by virtue of any judicial order.
5. It therefore appears that the maximum period for which a person against whom the realisation of arrears of maintenance amount is due, has been taken into custody can be for a period of one month and not beyond that and it can be less than one month if the payment is made prior to the completion of one month in custody. In the case of “Laljee Yadav” (MANU/BH/1281/2011 : 2011 (4) PLJR 248) (supra) while considering sub-section (3) of Section 125 of Cr.P.C., it has been held as follows:
“31. Here, we may like to point out another aspect of the matter. As seen above, the maintenance is to be fixed on monthly basis. The sentence has, accordingly, been limited to a month maximum for each breach. Thus, as noticed by the Apex Court in the above referred to cases, there has to be separate sentencing upon separate and fresh application after considering the matter for each month or part thereof for which maintenance remains unpaid. Thus, by no stretch of imagination, can there be a continuous mechanical remand as in the present case.”
6. The circumstances enumerated here thus suggest that the petitioner has been kept in custody beyond the period which has been prescribed in the Code. Accordingly, the detention of the petitioner being illegal, he is directed to be immediately released from custody.
7. This application stands allowed.
8. Pending I.As, if any also stand disposed of. As prayed, let this order be sent through Fax to the concerned court.