Tag Archives: arrears

Even callous husband NOT paying maintenance, CAN’T b arrested b4 coercive measures u/Sec 421 exhausted. P & H HC

Any husband (even callous husband ) NOT paying maintenance under Sec 125 CrPC, CANNOT be arrested BEFORE other coercive measures u/Sec 421 CrPC, like attaching property etc, are exhausted. Punjab-Haryana High Court

In this classic case the Hon P & H HC states that unless other modes of recovery (as contemplated under sec 421 are ) are exhausted a husband CANNOT be arrested for NON payment of arrears maintenance !! So the executive magistrate has (a) issue a warrant for the levy of the amount by attachment and sale of movable property belonging to the offender or (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter. Also, NO warrant could be issued if the arrears is MORE than 1 year !!

This is VERY useful case for husbands to use when they are unable to pay maintenance i/s 125 CrPC !!

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Punjab-Haryana High Court

Om Parkash vs Vidhya Devi on 21 March, 1991

Equivalent citations: 1992 CriLJ 658

Author: J Sekhon

Bench: J Sekhon

ORDER J.S. Sekhon, J.

 

  1. In proceedings under Section 125 of the Code of Criminal Procedure, 1973, Smt. Vidya Devi was awarded maintenance allowance at the rate of Rs. 150/- per month for herself and Rs. 100/ – per month for her minor daughter against her husband Om Parkash from the date of application, i.e., 9-5-1984. It is not disputed that the order of the Judicial Magistrate has become final as the revision petition filed against it has since been dismissed by the Additional Sessions Judge and petition under Section 482 of the Code was also dismissed by the High Court in Cr. Misc. 4919-M of 1989. Om Parkash, husband or the father, as the case may be, failed to pay the amount of maintenance allowance to his wife and daughter which resulted in taking execution proceedings by Vidya Devi respondent against him. On 25-1-1990, Om Parkash, the husband failed to turn up before the Court of the Additional Chief Judicial Magistrate, Kurukshetra, despite service inferred from the refusal to accept service. The trial Cour under these circumstances, ordered the arrest of Om Parkash, and issued conditional warrants of arrest for 16-2-1990 stating that if he pays Rs. 15,500/- as arrears of maintenance allowance he shall not be arrested. Aggrieved against this order, the husband-petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, contending that without exhausting coercive methods provided under Section 421 of the Code of Criminal Procedure like attachment of property etc. etc., the arrest of the petitioner could not be ordered. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  2. I have heard the learned counsel for the parties besides perusing the record.
  3. The provisions of Sub-section (3) of Section 125 of the Code read as under:–
    • (3) If any person so ordered fails without sufficient cause to comply with the order, any such 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 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;
    • Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.
    • Provided further that if such person offers to maintain his wife on condition of her living with him and she refused to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
    • Explanation : If a husband has contracted marriage with another woman or keeps a mistress  it shall be considered to be just ground for the wife’s refusal to live with him.
    • A bare glance through the same leaves no doubt that if any person fails to comply with the order of the Magistrate to pay maintenance allowance without sufficient cause, such Magistrate may issue 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 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.
  4. The procedure for levying fine is contained in Section 421 of the Code of Criminal Procedure which reads as under:–
    • 421. Warrant for levy of fine.
    • (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may–
    • (a) issue a warrant for the levy of the amount by attachment and sale of movable property belonging to the offender.
    • (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter.
    • Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.
    • (2) The State Government may make rules regulating the manner in which warrants under Clause (a) of Sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the Offender in respect of any property attached in execution of such warrant.
    • (3) Where the Court issues a warrant to the Collector under Clause (b) of Sub-section (1), the Collector shall realise the amount in, accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law; Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.”
    • The perusal of the above-quoted Section 421 reveals that there are two methods for levying fine and the Court has been empowered to opt for either of these two modes or both at one and the same time. One of these modes provided under Sub-section (1) (a) is to issue a warrant for levy of the amount by attachment and sale of movable property belonging to the offender and the other being issuance of a warrant to the Collector authorising him to realise the amount as arrears of land revenue from the movable property, or both. In the case in hand, the trial Court had not resorted to any of these coercive measures for the recovery of the arrears of maintenance allowance although it is mentioned in the impugned order of the trial Court that the husband is a man of means. Thus, legally the impugned order of the trial Court being not sustainable calls for quashment.
  5. Before parting with the judgment, I am constrained to remark that Om Parkash petitioner appears to be a callous sort of person as he failed to pay even half of the maintenance allowance, as ordered by this Court, to his wife and daughter. Although he deserves no sympathy yet all the same in view of the legal position, there is no option but to accept this petition and quash the impugned order of the trial Court. The petitioner is directed to appear before the trial Court on 26-4-1991 and furnish details of the movable and immovable property owned by him to the trial Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  6. The trial Court is directed to dispose of the execution petition expeditiously preferably within six months.

 


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Not payng u/s 125 Crpc -> arrest!! BUT you gotta still pay, bcaz arrest is NOT payment !!!! Supreme court of India

“……….Sentencing a person to jail is a “mode of enforcement”. It is not a “mode of satisfaction” of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge………….”

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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1542 OF 2013

(ARISING OUT OF SLP (CRL.) NO. 4654 OF 2005)

Poongodi & Anr. … Appellant(s)

Versus

Thangavel … Respondent(s)

J U D G M E N T

RANJAN GOGOI, J.

Delay condoned. Leave granted.

2. The appellants are the wife and son of one Thangavel. By an order dated 12.01.1998 passed by the learned trial court each of the appellants have been granted maintenance @ Rs. 300/- per month w.e.f. 04.02.1993 i.e. date of filing of the application under Section 125 of the Code of Criminal Procedure (CrPC). As the respondent-husband had not complied with the order of payment, in a miscellaneous petition, i.e., C.M.P. No. 566/1998 filed by the appellant, the trial court by its order dated 21.07.1998 had sentenced the respondent to imprisonment. The default in payment of maintenance was for the period 4.2.1993 to 4.2.1998. On 5.2.2002 another miscellaneous application (Crl.M.P. No.394/2002) was filed by the appellants claiming maintenance for the period 4.2.1993 to 5.2.2002. The same was allowed by the learned Magistrate on 31.12.2002 against which the respondent had filed Crl. R.C. No. 620/2003. The High Court by its order dated 21.4.2004 held that as Crl.M.P. No. 394/2002 was filed on 5.2.2002, under the first proviso to Section 125(3) CrPC, the appellants were entitled to claim arrears for the period of one year preceding the date of filing of the application i.e. from 4.2.2001 to 5.2.2002. Accordingly, the High Court directed the respondent (revision petitioner before it) to pay the arrears for the aforesaid period within two months failing which it was directed that an arrest warrant would be issued against the respondent and the sentence of imprisonment earlier imposed by the learned Magistrate would come into effect. As the aforesaid order of the High Court had curtailed the entitlement of the appellants to maintenance to a period of one year prior to the date of filing of the Crl. M.P. No. 394/2002, the appellants have filed this appeal. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

3. We have heard learned counsel for the parties.

4. A reading of the order dated 21.4.2004 passed by the High Court would go to show that the proviso to Section 125(3) CrPC has been construed by the High Court to be a fetter on the entitlement of the claimants to receive arrears of maintenance beyond a period of one year preceding the date of filing of the application under Section 125(3) CrPC. Having considered the said provision of the Code we do not find that the same creates a bar or in any way effects the entitlement of a claimant to arrears of maintenance. What the proviso contemplates is that the procedure for recovery of maintenance under Section 125(3) CrPC, namely, by construing the same to be a levy of a fine and the detention of the defaulter in custody would not be available to a claimant who had slept over his/her rights and has not approached the Court within a period of one year commencing from the date on which the entitlement to receive maintenance has accrued. However, in such a situation the ordinary remedy to recover the amount of maintenance, namely, a civil action would still be available. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

5. The decision of this Court in Kuldip Kaur v. Surinder Singh and Anr.[1] may be usefully recalled wherein this Court has held the provision of sentencing under Section 125 (3) to be a “mode of enforcement” as distinguished from the “mode of satisfaction” of the liability which can only be by means of actual payment. Paragraph 6 of the report to the above effect, namely, that the mode of enforcement i.e. sentencing to custody does not extinguish the liability may be extracted below: “6. A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a “mode of enforcement”. It is not a “mode of satisfaction” of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Be it also realised that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance “without sufficient cause” to comply with the order. It would indeed be strange to hold that a person who “without reasonable cause” refuses to comply with the order of the court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears. Monthly allowance is paid in order to enable the wife and child to live by providing with the essential economic wherewithal. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to live. Instead of providing them with the funds, no useful purpose would be served by sending the husband to jail. Sentencing to jail is the means for achieving the end of enforcing the order by recovering the amount of arrears. It is not a mode of discharging liability. The section does not say so. Parliament in its wisdom has not said so. Commonsense does not support such a construction. From where does the court draw inspiration for persuading itself that the liability arising under the order for maintenance would stand discharged upon an effort being made to recover it? The order for monthly allowance can be discharged only upon the monthly allowance being recovered. The liability cannot be taken to have been discharged by sending the person liable to pay the monthly allowance, to jail. At the cost of repetition it may be stated that it is only a mode or method of recovery and not a substitute for recovery. No other view is possible. That is the reason why we set aside the order under appeal and passed an order in the following terms: ………. ….”

6. In another decision of this Court in Shantha alias Ushadevi and Another v. B.G. Shivananjappa[2] it has been held that the liability to pay maintenance under Section 125 CrPC is in the nature of a continuing liability. The nature of the right to receive maintenance and the concomitant liability to pay was also noticed in a decision of this Court in Shahada Khatoon & Ors. v. Amjad Ali & Ors.[3]. Though in a slightly different context, the remedy to approach the court by means of successive applications under Section 125(3) CrPC highlighting the subsequent defaults in payment of maintenance was acknowledged by this Court in Shahada Khatoon (supra). http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

7. The ratio of the decisions in the aforesaid cases squarely apply to the present case. The application dated 05.02.2002 filed by the appellants under Section 125(3) was in continuation of the earlier applications and for subsequent periods of default on the part of the Respondent. The first proviso to Section 125(3), therefore did not extinguish or limit the entitlement of the appellants to the maintenance granted by the learned trial court, as has been held by the High Court.

8. In view of the above, we are left in no doubt that the order passed by the High Court needs to be interfered with by us which we accordingly do. The order dated 21.04.2004 of the High Court is set aside and we now issue directions to the respondent to pay the entire arrears of maintenance due to the appellants commencing from the date of filing of the Maintenance Petition (M.C.No.1/1993) i.e. 4.2.1993 within a period of six months and current maintenance commencing from the month of September, 2013 payable on or before 7th of October, 2013 and thereafter continue to pay the monthly maintenance on or before the 7th of each successive month. If the above order of this Court is not complied with by the Respondent, the learned Trial Court is directed to issue a warrant for the arrest of the respondent and ensure that the same is executed and the respondent taken into custody to suffer imprisonment as provided by Section 125(3) CrPC. The appeal is allowed.

..………………………..………………………J.

[SUDHANSU JYOTI MUKHOPADHAYA]

..………………………..………………………J.

[RANJAN GOGOI]

NEW DELHI

SEPTEMBER 27, 2013