Default in payment of monthly maintenance: Magistrate can’t sentence defaulter beyond 12 months’ imprisonment: HC

Mumbai: The Bombay High Court on Monday held that a metropolitan magistrate cannot sentence a person to imprisonment beyond a period of 12 months at a stretch for default in payment of maintenance under the Protection of Women from Domestic Violence (DV) Act, 2005.

A single judge bench of Justice Sharmila U Deshmukh ordered a 45-year-old resident of Indore to be released from prison, as he had been sentenced to simple imprisonment of 47 months for defaulting in payment of maintenance to his estranged wife and minor daughter.

In August 2018, the estranged wife of the Indore resident had filed a complaint before the Metropolitan Magistrate Court in Mulund – where she lived with her parents -- invoking provisions of the DV Act, seeking relief in various issues related to the case. Acting on her plea, the magistrate court had on September 23, 2019, ordered the Indore resident to pay monthly interim maintenance of ₹15,000 to the woman and ₹10,000 to their minor daughter.

In July 2023, the 42-year-old woman filed a plea, seeking the arrest of her husband, claiming that he failed to pay them interim maintenance regularly and since December 2019, he had paid them only ₹3.25 lakh, and the maintenance for 59 months had remained unpaid.

In response to the plea, the husband paid an additional amount of ₹1 lakh, but as he failed to clear the balance outstanding dues, on January 20, 2024, the magistrate court sentenced him to 47 months of simple imprisonment (holding that he defaulted in payment of maintenance for 47 months).

The husband then moved the High Court, challenging the magisterial court order on various grounds. Justice Deshmukh on Monday allowed his plea and ordered the jail authorities to release him, primarily on the ground that the magistrate court had no powers to sentence a person beyond 12 months on account of default in payment of maintenance.

The judge held that the clause to section 125(3) of the Criminal Procedure Code (CrPC) limits the power of the magistrate to issue a warrant for recovery of an amount that has become due beyond the period of one year.

The court said it appears that the clause deals with the limitation for filing of an application and bars the issuance of a warrant in respect of any amount unless an application was made within the period of one year from the date from which the amount became due.

“If an application cannot be filed seeking a warrant for recovery of an amount remaining unpaid for a period of more than one year, there is no question of imprisonment being imposed for a term exceeding one year,” said Justice Deshmukh. “The period of 12 months is the outer limit.”