# Legal Question u/s. 125 (3) Cr.P.C.
Whether on a single petition under section 128 Cr.P.C. alleging default in payment of the maintenance for a long period the defaulter can be sentenced to undergo imprisonment for a period of more than one month holding that the liability of the husband arising out of an order passed under Section 125 Cr.P.C. to make payment maintenance is a continuing one?
# Section 125(3) in The Code Of Criminal Procedure, 1973 reads thus:
(3) If any Person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a 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 4[ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] 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:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
At the very outset, it is to be noted that the provisions under section 125 (3) of Cr.P.C., obviously, cannot be regarded as a means of punishment whilst it is only a means of enforcement of payment. It cannot be regarded as an order of punishment for contempt of court. This has to be borne in mind while passing an order sentencing for imprisonment.
A month’s imprisonment for every default is not the rule and the said position is very much evident from a bare perusal of section 125(3) of Cr.P.C. as well.
# Non-payment of Maintenance
Before passing an order under section 125(3) of Cr.P.C. it is the bounden duty of the court to consider whether the non- payment of maintenance is the result of a willful negligence on the part of the defaulter.
A perusal of section 125(3) Cr.P.C. would reveal that the Magistrate may, for every breach of the order, issue a warrant for levying the amount in the manner provided for levying fines.
The first proviso to section 125(3) Cr.P.C. makes it mandatory for the court to see whether the application has been made within prescribed time.
During such consideration the court has also to look into the fact whether the application is made for maintenance awarded in favour of the minors as in the case of minors the provisions under sections 3(6) and 29 of the Limitation Act may become applicable.
In terms of the said proviso an application shall be presented by the person entitled to maintenance under an order of the court under section 125 Cr.P.C. within one year from the date on which the amount becomes due.
When that be the provision, there cannot be any doubt that while considering an application under section 128 Cr.P.C. for enforcement of the order of maintenance the court is bound to look into the period covered by the application and whether there was any willful negligence on the part of the defaulter.
Going by section 125(3) Cr.P.C. a recourse to attachment and sale of peroperty under section 421 Cr.P.C. can also be resorted to.
Above all, it is to be noted that the proviso under section 125(3) Cr.P.C. is virtually intended to prevent a person entitled to maintenance from being negligent and allowing arrears claimable until the recovery to become a great hardship or impossibility.
[The above discussion on Section 125(3) Cr.P.C. is quoted from a significant judgment of the Kerala High Court in Mohandas Vs. Jayanthi dated 15th June, 2012 authored by Justice C.T. Ravikumar.]