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Imprisonment By Family Court For Default In Complying With Courts Order For Providing Maintenance

In Gorakshanath Khandu vs State 2005 Cr LJ 3158,the family court, Pune fixed the maintenance at the rate of Rs 1500 to the wife and minor daughter, Rs 2400/- fell in arrear and as such,a warrant was issued. The applicant expressed his inability to pay an amount and showed willingness to suffer imprisonment. Finding no other alternative,the family court ordered that the applicant would undergo imprisonment for 12 months.

The only challenge that was made in the Revision petition was that the Family Court could have ordered for imprisonment to only one month and not 12 months.

Subsection (3 of section 125 is the only provision, which provides for sentencing a person committing default in the payment of maintenance. Subsection (3) of Section 488 of the code of 1898 also contained a similar provision. Both these provision are in Pari materia.

In terms of 125(3) ,for a default of whole or any part of the maintenance allowance remained unpaid, the imprisonment for a term extending up to one months or until payment, whichever is earlier, can be imposed by the Magistrate. In view of the proviso, the wives and children who are eligible for recovery of any amount of maintenance, may file such an application within a period of one year from the date on which it has become due.

Thus in one application for enforcement of the order u/s 125, a maximum due amount can be claimed is of the 12 months and if the proviso is read conjointly with the main sub section (3) ,it becomes clear that for default of the whole or any part of each month's maintenance allowance sentence of one-month imprisonment can be imposed by the Magistrate and thereby total imprisonment may extend up to period of 12 months.

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