Default of 125 Cr PC order is viewed seriously by the courts and the amount of coercive action in case of default varies from case to case.

Under section 125(4) the court can take coercive action for enforcing execution of the maintenance order.

The maintenance order can be enforced in two ways by warrant of attachment wherein the assets of the petitioner are attached and amount of arrears are recovered and another way is by warrant of arrest where real jail time the husband has to suffer in case of default.

Now how much jail time he has to go?

The answer to this is maximum of 30 days per application

In Judgement of Ramdhani Sah vs The State Of Jharkhand on 22 June, 2016

It therefore appears that the maximum period for which a person against whom the realisation of arrears of maintenance amount is due, has been taken into custody can be for a period of one month and not beyond that and it can be less than one month if the payment is made prior to the completion of one month in custody. In the case of “Laljee Yadav” (supra) while considering Sub-section 3 of Section 125 of Cr.P.C., it has been held as follows:

31. “Here, we may like to point out another aspect of the matter. As seen above, the maintenance is to be fixed on monthly basis. The sentence has, accordingly, been limited to a month maximum for each breach. Thus, as noticed by the Apex Court in the abovereferred to cases, there has to be separate sentencing upon separate and fresh application after considering the matter for each month or part thereof for which maintenance remains unpaid. Thus, by no stretch of imagination, can there be a continuous mechanical remand as in the present case.”

But the jail of 30 days does not absolve the liability.

Rather it is a means to enforce the liability..

MANU/SC/0956/1999 : (1999) 5 SCC 672 : 1999

AIR SCW 4880 (Shahada Khatoon v. Amjad Ali). The Apex Court has gone to

the extent of saying that the confinement can extend to only one month and if

even after the expiry of one month the delinquent husband does not make the

payment of arrears then the wife can approach the Magistrate again for a

similar relief but the confinement of the husband must be only of one month. In

the own words of the Apex Court “By no stretch of imagination can the

Magistrate be permitted to impose sentence for more than one month”. Thus,

this latest decision of the Apex Court further lays down a fetter in the exercise

of this power by the Judicial Magistrate or the Family Judge to the extent that

only a confinement for a period of one month can be passed on an application

whether the amount claimed by the wife as arrears is for more than one month

or for only a month. In one stroke no composite confinement can be directed by

the Court. It very clearly flows from the above decision. This power can be

exercised only after a warrant for recovery of the unpaid maintenance allowance

is issued by the Court. This warrant is to be executed like any warrant of

recovery of fine. This fine can be recovered like any land revenue arrears.

Unless that exercise is first adhered to, this power of confinement to jail for his

failure cannot be resorted to by any Court.

In K.M.C. Mahin vs. State of Kerala and Ors. (18.11.2013 – KERHC) : MANU/KE/1323/2013

It was held that 1 month imprisonment is the maximum court can impose but with each default of warrant another 1 month imprisonment can be given.

Nitish Banka

Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997