By way of present revision application, the applicant has prayed to quash and set aside the order dated 07th July, 2011 passed by the learned Judge, Family Court, Rajkot below Exhibit 1 application whereby the learned Judge, Family Court, Rajkot has convicted the present applicant for non-payment of maintenance amount of Rs.21,600/-.
It appears from the papers that wife of the present applicant filed application under Section 125(3) of the Code of Criminal Procedure, 1973 for recovery of maintenance amount from the applicant. It also appears from the papers that on that day, i.e. on 07th July, 2011, the applicant and wife of applicant were present before the Court and though the learned Judge has tried to settle the matter between them, the applicant has refused to take his wife and two children with him and also refused to give maintenance amount. It also appears from the papers that earlier also for not-payment of maintenance amount, the applicant was convicted.
Heard Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent No.1-State. I have also perused the papers produced before me.
In the facts of the case and more particularly in view of judgment reported in 2011 JX(Guj) 1039 in the case of Zahida Razakbhai Makrani Vs State of Gujarat wherein the Full Bench of the Apex Court in paragraph 22 has observed as under:
"22.
In the result, question is answered in following terms:
"Magistrate in exercise of powers under Section 125 of the Code of Criminal Procedure is empowered to sentence a defaulting person for a term upto one month (or until payment if sooner made) for each month of default subject of course to the limitation provided in proviso to sub-section (3) of section 125. In other words, it is open for the Magistrate to award sentence upto a maximum of one month for each month of default committed by the person ordered to pay maintenance and the maximum limit of sentence of one month referred to in sub-section (3) of section 125 will be applicable for each month of default. Magistrate can entertain separate applications from the person entitled to receive such maintenance or even entertain a common application for several months of default and pass appropriate order and, if found necessary, sentence a defaulting person upto a maximum one month for each month of default. In all such cases, however, period of limitation provided in sub-section (3) of section 125 shall have to be borne in mind."
In the above view of the matter, it clearly transpires that the dispute involved in the instant matter has been squarely settled by this Court in the above referred decision. In the instant case, as per the order of the learned Judge, Family Court, Rajkot, 25 days imprisonment came to be awarded to the applicant - husband, for the default of payment of maintenance of each month and thus, the applicant was directed to undergo imprisonment for 300 days. Under such circumstances, this Court is of the opinion that the arrears of maintenance for the period of 12 months can only be taken into consideration while passing appropriate order. After considering the facts and circumstances of the case, the learned Judge came to the conclusion that 25 days imprisonment for each month's default of maintenance would meet with the ends of justice and this Court does not find any justifiable reason to interfere with the discretion exercised by the learned Judge while fixing the quantum of sentence.
In view of above, present Revision Application is dismissed. The order dated 07th July, 2011 passed by the learned Judge, Family Court, Rajkot below Exhibit 1 Application is hereby confirmed. Record and Proceedings, if any, be sent back to the concerned Court.
(Z.
K. Saiyed, J) Anup Top