Jan - High Court of Judicature at Allahabad

1 All] Manoj Kumar Gupta V. Smt. Kamlesh Kumari and anothers 37the applicant. Therefore when so read it isclear that the power to sentence is for thewhole or any part of each month'sallowance remaining unpaid after theexecution of the warrant to imprisonmentfor a term which may extend to one monthor until payment if sooner made. Thesewords clearly lay down the power of theMagistrate. The power of the Magistrate inrespect of whole or any part of eachmonth's allowance remaining unpaid tosentence the person for a term notexceeding one month.10. In the reported case before theFull Bench of Bombay High Court, thepetitioner was ordered by the Magistrate topay maintenance to his wife and daughter.He made a default and failed to complywith this order. The wife made anapplication that there had been a default inthe payment for four months. TheMagistrate issued a warrant and thewarrant could not be executed as theapplicant had no property. The wife thenmade an application under Section 488 (3)of the Criminal Procedure Code, 1898 andon that application, the Magistrate passedan order sentencing the applicant to beimprisoned for a term of 15 days in respectof each month for which the allowanceremained unpaid. The Full Bench held thatthe Magistrate was right in the order thathe passed.11. A Division Bench of CalcuttaHigh Court in Moddari Bin Vs. SukdeoBin reported in AIR 1967 Calcutta 136(DB) while interpreting Section 488 of theCriminal Procedure Code, 1898 inparagraphs 14 and 17 had observed asunder:-"(14) The next point raised in theletter of reference is whether thepunishment can be limited only to a periodof one month as the maximum underSection 488 (3), Cri. P.C. The language ofthe section has been quoted above. Itexpressly provides that the Magistrate maysentence such person for the whole or inpart of each months allowance to a termwhich may extend to one month or untilpayment if sooner made. The maximum ofone month, in our view, in this context andon proper interpretation of the language ofthe section is relatable to a period of thearrear for one month. In other words,default of one month is punishable by onemonth's imprisonment and no more. If thedefault is more than one month then theimprisonment can be for as many monthsof default subject to a maximum of 12months. The question here is whether adefault of 9 months which had occurredcould be punishable with six months'imprisonment which the Magistrate herehas ordered. On the authorities and on theconstruction of Section 488 (3) Cri. P.C.We have come to the conclusion that theMagistrate can make an order for sixmonths' imprisonment for nine monthsdefault. In fact the maximum imprisonmentwhich he on the present facts could havegiven was 9 months, but he has given less.Section 488 (1) of the Criminal ProcedureCode provides expressly for a monthlyallowance for the wife or the child at suchmonthly rate not exceeding five hundredrupees in the whole as the Magistratethinks fit. The second proviso to Section488 (3) makes it clear that no warrantshall be issued for the recovery of anyamount due under the section unlessapplication be made to the Court to levysuch amount within a period of one yearfrom the date on which it became due. Thatwould indicate that at the most the wifecould only accumulate twelve months'maintenance and no more and the