Section 125(3) of the Criminal Procedure Code provides that if any person fails without sufficient cause to comply with the maintenance order, the 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 allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may 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.
Therefore, it should be clear that maximum custody is one month for each month’s allowance. This is also when the husband fails to comply with the order “without sufficient cause”. If you can prove to the court and can satisfy the court that you don’t have any means of paying the maintenance, then it may not perhaps be said to be without sufficient cause. You can try it.
In the case of Shahada Khatoon v. Amjad Ali, (1999) 5 SCC 672, the Supreme Court held that:
“The language of sub-section (3) of Section 125 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 or non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month.”
This implies that while the maximum custody for non-compliance of order of maintenance is one month, but the wife can again approach for similar relief if the further orders of maintenance (for further months) are also not complied with.
In this regard, in the case of R. Rajesh v. Kalaiyarasi [Crl.R.C.No.57 of 2017 & Crl.M.P.No.621 of 2017, decided on 11 July 2017], Madras High Court has held as under:
“…whenever there is a failure of complying the order for payment of maintenance, then the person would be liable to be sent to jail for a period of one month. However, this restriction of one month under sub-section 3 of Section 125 of the Code of Criminal Procedure cannot stand in the way even after one month period, if he continues to neglect the payment of arrears, once again the very same provision of 125(3) of the Code of Criminal Procedure can be invoked by the Court concerned, provided if the law is set in motion by filing an appropriate petition by the wife or the affected party. However, the Court cannot send a person to jail beyond the period of one month at a stretch or in one stroke for his failure to pay the maintenance of arrears.”
So, you can examine the facts of your case in the light of these judgments, i.e., whether the custody was for failure to pay only one month’s allowance or for several months’ allowances, and also whether every time the wife had approached the court separately or the order was passed in one stroke. Thereafter, you can take necessary action. It is not possible for us to go into detailed facts of a case on this Forum, as per our Forum guidelines.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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