IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.01.2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl. R.C.No.1045 of 2009 Periyasamy .... Petitioner Vs. Lakshmi ... Respondent Memorandum of Grounds of Criminal Revision Petition filed under Sections 397 r/w 401 of the Code of Criminal Procedure, praying to set aside the order dated 25.03.2009 passed by the learned Judicial Magistrate, Bhavani in Crl.M.P.No.2971 of 2008 in M.C.No.9 of 2007. For petitioner : Mr.N.Manokaran For respondent (s): Mr.S.Lakshmanasamy ORDER
The petitioner is the husband of the respondent. On a petition in M.C.No.9 of 2007 filed by the respondent herein under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), the learned Judicial Magistrate, Bhavani, Erode District passed an order directing the petitioner herein to pay a sum of Rs.1,000/- per month to the respondent herein as maintenance.
2. On the ground that the petitioner failed to pay the maintenance amount for 37 months, the respondent filed Crl.M.P.No.2971 of 2008 before the learned Magistrate under Section 128 of the Code for execution. On appearance, the respondent requested the learned Magistrate to grant time to pay the amount. Though time was granted, the petitioner did not pay the amount. Finally, the learned Magistrate by order dated 25.03.2009 imposed a sentence of 12 months of Rigorous Imprisonment. Challenging the same, the petitioner is now before this Court with this revision.
3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. I have also perused the records carefully.
4. Admittedly, the petition which culminated in the impugned order was filed only to enforce the order of maintenance as provided in Section 128 of the Code and it was not filed under Section 125(3) of the Code. It is well settled that under Section 128 of the Code while enforcing an order of maintenance, the learned Magistrate is not empowered to impose any sentence on the defaulter. The learned Magistrate is empowered only to enforce the same as provided for recovery of fine in the Code. But, the learned Magistrate has passed an order of sentence as though she was dealing with a petition under Section 125(3) of the code. It is needless to say that under Section 125(3) of the Code, there are various constraints like, the limitation, etc., to entertain a petition; whereas under Section 128 of the Code, obviously, there is no such limitation provided for enforcing the order. It is not as though a wrong provision has been quoted by the respondent. Even during the argument, it was understood by the parties that the petition was filed only under Section 128 of the Code, which is evident from the impugned order itself. The learned Magistrate relying on a judgement of this Court in Udayasuriyan v. Lakshmi and others, 2006 (2) L.W. (Crl.) 709 has to come to the conclusion that such sentence can be imposed on the defaulter. But, the learned Magistrate has omitted to notice that in the said case, the petition was filed under Section 125(3) of the Code and not under Section 128 of the Code. The powers of the Magistrate under Sections 125 and 128 of the Code are distinguishable. Therefore, a petition filed under Section 128 of the Code cannot be treated as a petition filed under Section 125 of the Code. Now, the learned Magistrate has allowed the petition thereby put an end to the further proceedings. The order impugned in this revision petition not only has caused prejudice to the petitioner, but also deprives the respondent inasmuch as she has claimed arrears of maintenance for 37 months, whereas the order relates only to 12 months. Thus, the respondent also stands to lose the arrears of maintenance for 25 months. Thus, the impugned order is not at all sustainable.
5. In view of the above, the revision petition is allowed; the order impugned in this revision is set aside; and Crl.M.P.No.2971 of 2008 is remitted to the learned Judicial Magistrate, Bhavani, Erode District to enforce the order as provided in Section 128 of the Code of Criminal Procedure.
Index : yes 29.01.2010 Internet : yes kmk To 1.The Judicial Magistrate, Bhavani, Erode District. S.NAGAMUTHU. J., kmk Crl.R.C. No.1045 of 2009 29.01.2010