Tag Archives: maintenance arrears

Maintenance arrears – Detaining husband continuously MORE than 1 month illegal – Patna HC

Sec 125 CrPC Maintenance arrears. Continuous detention of non paying husband for more than a month is ILLEGAL ! Fresh applications are to be preferred by wife and fresh orders need to be passed for further detention. Judgment also refers to Supreme court Judgment and earlier Patna HC decisions and relevant sections

////provision under Section 125(3) Cr. P.C., we find that the issue has been settled by the Apex Court in (1999) 5 SCC 672 and by decision reported in 2000(1) PLJR 578. The Principle Judge, Family Court, after taking the petitioner in custody has not passed any fresh order for extension of the period in custody for fresh default of each month. Since the condition for keeping in custody as provided under Sub-section (3) of Section 125 Cr.P.C. has not been observed by the principle Judge, Family Court, the detention of petitioner beyond one month?s period cannot be held to be legal. ////

The Hon Patna HC also affirmatively refers to the Judgement in Ashok Prasad -Versus- The State of Bihar & Another, reported decision in 2000 (1) PLJR 578

////So, two conditions before sentencing a person to imprisonment for non-payment of maintenance allowance are required. First the Magistrate must be satisfied that the person without any sufficient cause is not paying the maintenance and violating the order and secondly to issue warrant for levying the amount due in the manner provided for levying fines and after its execution to ascertain the amount which has remained unpaid. If any amount is found to have remained unpaid the Magistrate may sentence such persons to imprisonment for a period of one month for the whole or any part of each month?s allowance remaining unpaid. In other words, if after issuance of warrant for levying the amount due in the manner provided for levying fine it is found that no amount has remained due, the question of sentencing the persons to imprisonment does not arise. So the Magistrate, has to see the result of execution of warrant issued for levying amount due.”////


IN THE HIGH COURT OF JUDICATURE AT PATNA

CR. WJC No.810 of 2010

MANOJ KUMAR PATEL @ MANOJ PATEL SON OF JOKHI
PATEL, RESIDENT OF MOHALLA NONIA TOLA, CHAKKI
PAKRI, P.S. SHIKARPUR, DISTRICT-WEST CHAMPARAN,
BETTIAH——PETITIONER .

Versus
1. STATE OF BIHAR THROUGH HOME SECRETARY,
BIHAR, PATNA.

  1. MUNITA DEVI WIFE OF MANOJ KUMAR PATEL, D/O
    MADAN PD. PATEL
  2. RAMBABU @ SONI
  3. SHYAM KISHORE, BOTH SONS OF MANOJ KUMAR
    PATEL ALL ARE RESIDENTS OF SAGAR POKHARA, P.S.
    BETTIAH TOWN, DISTRICT-WEST CHAMPARAN—–
    RESPONDENTS..

 

For the petitioner:- Mr. R.S.Sahay & Mr. J.J.Sahay,Advs.

For the State:- Mr. Kaushal Kishore Jha, SC-

18 5

16.09.2010

Petitioner is the husband of Respondent no.2 Munita Devi and father of respondent Nos. 3 and 4. Respondent no.2 and her children, respondent nos. 3 and 4 were deserted by the petitioner; as such she filed a petition under Section 125 of the Code of Criminal Procedure for maintenance of herself as well as her two children, from the petitioner. The case was registered as Maintenance case No. 308M/2005 and heard by Principal Judge, Family Court, West Champaran, Bettiah. The case, on contest was decided in favour of respondent nos. 2 to 4 and vide order dated 16.12.2009 the petitioner was directed to pay maintenance of Rs. 1000/- Per month to all three (respondent nos. 2 to 4) from the date of filing of maintenance case i.e. 27.9.2005. The order passed by the Family Court granting maintenance in favour of respondent nos. 2 to 4 was challenged by the petitioner by filing Criminal Revision No. 248 of 2010 which is still pending in the High Court. However, despite the fact that there was no stay order passed in favour of the petitioner, he did not pay a single penny to his legally wedded wife and children. He has also filed matrimonial suit (Divorce No. 188 of 2007) which is pending for adjudication. Since the monthly maintenance amount was not being paid to the respondents, as such respondent no.2 filed a petition before the Principal Judge, Family Court, West Champaran, Bettiah in order to get the maintenance order complied. Notice was issued to the petitioner to show cause, as such he appeared before the Court and made a prayer for staying the operation of the order passed in the maintenance case or for a direction that the petition be considered along with matrimonial divorce case. https://twitter.com/ATMwithDick/status/1016947220522979329

On perusal of the order-sheet of the maintenance case No. 308M/2005, it transpires that in response to show cause notice, the petitioner appeared before the Principle Judge, Family Court, West Chmparan and on 20.4.2010 the petitioner as well respondents were heard. One months time was allowed to the petitioner either to bring stay order or to make payment of entire arrears amount as well as month to month maintenance amount to the respondents. On 22.5.2010, when again the matter was taken up, both the parties were heard. Since, no stay order could be obtained by the petitioner from the High Court, as such the petitioner was asked to deposit the entire arrears of maintenance amounting to Rs. 1,65,000/-. Petitioner showed his reluctance in making payment, as such warrant of arrest was issued against the petitioner and in exception of it he was taken into custody. The matter was again directed to be listed on 5.6.2010. On 22.5.2010 petitioner has filed a petitio for staying the operation of order dated 16.12.2009, passed in maintenance case allowing maintenance in favour of respondents, but that was rejected and an order for taking the petitioner into custody was passed as provided under Section 125(3) of the Code of Criminal Procedure. On 2.6.2010 again the matter was taken up and the petition filed by the petitioner challenging the order taking into custody was taken up for consideration. Petitioner had challenged the order stating that he could not have been ordered to be imprisoned without taking recourse to the procedure for recovery of fine as provided under Section 421 of the Code of Criminal Procedure. There should have been a proper order of sentencing, before taking him in custody. However, the Principal Judge, Family Court, West Champaran, Bettiah, rejected the plea taken by the petitioner stating that Section 125(3) of the Code of Criminal Procedure in itself is a complete provision which provides that in case of failure to comply with the order for payment of maintenance amount warrant of arrest can be issued, till the realization of the amount. There is no necessity to follow the procedure provided for levying fines. The person may be sentenced for the whole or any part of each month?s non payment of maintenance amount in execution of the warrant. For unpaid maintenance amount the person concerned may be imprisoned for a term of one month or until payment is sooner made. Only required for issuance of warrant for the recovery of any amount due under this section is that there must be an application filed by the aggrieved wife / children before the court for realization of such amount within a period of one year from the date on which it became due. The Court if satisfied that there is just ground for not making payment of such amount was on filing such application, no warrant can be issued. Since, there was no ground available in favour of the petitioner and he refused to make payment the maintenance amount without there being any reasonable ground for it, the provision under Section 125(3) was applicable. Section 125 (3) Cr.P.C. provides jurisdiction to the court for issuance of warrant of arrest and for taking into custody in execution of it.

Counsel appearing for the petitioner submits that on simple reading of the provision under Section 125(3) Cr.P.C., it is apparent that before issuance of warrant of arrest or taking the defaulter into custody, he should be given proper opportunity to show the reason for non-payment and only in case the Court is satisfied that without any obvious reason the direction of the Court has been flouted, any order regarding issuance of warrant of arrest could have been passed. The period of imprisonment in any case could not have been exceeded beyond one month as for each period of default; there should have been fresh application and fresh order of custody for the unpaid maintenance amount for each month. In this regard the counsel for the petitioner placed reliance on a decision reported in the case of Ashok Prasad Vs. State of Bihar (2000 (1) PLJR 578) and also in the case of Shahada Khatoon and others vs. Amjad Ali and others (1999 (5) SCC 672). However on perusal of the impugned order, it transpires that the Court below has placed reliance on a decision of the Apex Court reported in the case of Kuldip Kaur vs. Surinder Singh (AIR 1989 SC 232), wherein it has been held that a person cannot be released from the custody till he makes the payment.

In the decision reported in (1999) 5 SCC 672, the short question which arose for consideration was whether the single Judge of Patna High Court has correctly interpreted the provision under sub-section (3) of Section 125 Cr.P.C., by directing the Magistrate that he can only sentence for a period of one month or until payment, if sooner made. The Apex Court held that the language of sub-section (3) of Section 125 Cr.P.C. is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month. For breach of non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month. In that view of the matter, the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. https://twitter.com/ATMwithDick/status/1016947220522979329

Counsel for the petitioner placing reliance on a decision of Division Bench of Patna High has submitted that the provision of sub-section (3) of Section 125 Cr.P.C. has been considered in the reported decision 2000 (1) PLJR 578. The facts in the reported decision were identical to the facts of the present case. Petitioner of that case had also filed a petition for his release and for holding that his detention in the custody is illegal. The petitioner- husband had been arrested on 7.8.1995 in execution of warrant of arrest issued on 1.8.1995 by the Judicial Magistrate for default in payment of maintenance amount and its? arrears. Since then, after every 14 days he was being remanded to judicial custody and continuously for three and half years he was in custody, the Division Bench while interpreting the jurisdiction of the Court under Section 125(3) Cr.P.C. held as follows:-

” From a reading of Section 125(3) Cr. P.C. it is clear that if any person who has been ordered to pay maintenance under section 125(1) Cr.P.C. fails without sufficient cause to comply with the order, the Magistrate may take such steps for realization of amount which are provided for levying fines and after execution of distress warrant it is found that any amount has remained unpaid the Magistrate may sentence such person for the whole or any part of each month?s allowance remaining unpaid to imprisonment for a term which may extend to one month or until payment, if sooner made. So it is clear that the Magistrate has first to satisfy that the order has not been complied by a person without sufficient cause and if he finds that there is failure of the compliance of the order without sufficient cause he will issue a distress warrant for levying the amount due for every breach of the order in the manner provided for levying fines. It is further provided that after execution of distress warrant if the Magistrate finds that any amount has remained unpaid he may sentence such person for the whole or part of each month?s allowance remaining unpaid to imprisonment for a term which may extend to one month or until payment whichever is earlier. The manner provided for levying fines is prescribed under section 421 Cr.P.C. So, two conditions before sentencing a person to imprisonment for non-payment of maintenance allowance are required. First the Magistrate must be satisfied that the person without any sufficient cause is not paying the maintenance and violating the order and secondly to issue warrant for levying the amount due in the manner provided for levying fines and after its execution to ascertain the amount which has remained unpaid. If any amount is found to have remained unpaid the Magistrate may sentence such persons to imprisonment for a period of one month for the whole or any part of each month?s allowance remaining unpaid. In other words, if after issuance of warrant for levying the amount due in the manner provided for levying fine it is found that no amount has remained due, the question of sentencing the persons to imprisonment does not arise. So the Magistrate, has to see the result of execution of warrant issued for levying amount due.”

We find that the Court below has placed reliance on a decision reported in the case of Smt. Kuldip Kaur Vs. Surendra Singh and another ( AIR 1989 SC 232). But the question for consideration before the Apex Court in the matter was whether, in case of person refusing to comply the order of the Court to maintain his neglected wife or children, without reasonable cause, will be absolved of his liability, merely because he prefers to go to jail. Considering every aspect of the provisions under Sub-section (3) of Section 125 Cr.P.C., it was held that sentencing a person to jail is „mode of enforcement? and not „mode of satisfaction?. The liability can be satisfied only by making actual payment of arrears. The Supreme Court directed the defaulting husband be put in jail till he makes the payment of maintenance allowance. However, there is no finding whether this period can be only one month or more than one month.

On the other hand, counsel appearing for the State has raised objection regarding maintainability of the application of habeous corpus challenging legality of the detention, stating that since the petitioner is detained in jail for flouting the order of the Court under Section 125(3) Cr.P.C. and there is a provision for issuance of warrant of arrest under sub-section 3 of Section 125 Cr.P.C. for issuance of warrant of arrest and taking into custody, due to non-payment of arrears as well as monthly maintenance amount, the detention cannot be considered as illegal detention and writ of habeous corpus is not maintainable.

Counsel for the State has submitted, at best, the petitioner can challenge the legality of the order by filing criminal revision application before the appropriate forum. He has placed reliance on a decision reported in the case of Kanu Sanyal Vs. District Magistrate, Darjeeling (AIR 1974 SC 510), where the finding has been recorded as follows;- “Where a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal.”

On consideration of different decisions on which reliance has been placed by the parties and the provision under Section 125(3) Cr. P.C., we find that the issue has been settled by the Apex Court in (1999) 5 SCC 672 and by decision reported in 2000(1) PLJR 578. The Principle Judge, Family Court, after taking the petitioner in custody has not passed any fresh order for extension of the period in custody for fresh default of each month. Since the condition for keeping in custody as provided under Sub-section (3) of Section 125 Cr.P.C. has not been observed by the principle Judge, Family Court, the detention of petitioner beyond one month?s period cannot be held to be legal. Once it is held that the detention is illegal, there cannot be any question regarding maintainability of the writ application. Keeping in view that the petitioner has remained in custody beyond one month?s period, in the facts and circumstances of the case, his detention is illegal. Accordingly direction is being issued for release of the petitioner forthwith in connection with Maintenance Case No. 308M/2005, if not wanted to remain in custody in any other case.

The writ application stands allowed.

(Mridula Mishra,J.)

(Dharnidhar Jha,J.)

Akumar

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 !!

=========================================================================

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.

 


*****************************disclaimer**********************************
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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Sec 125 : Husband can be arrested ONLY 1 month AT A TIME for non payment of maintenance

Supreme Court of India

Shahada Khatoon And Ors. vs Amjad Ali And Ors. on 7 April, 1999

Equivalent citations: 2000 (1) ALD Cri 305, 1999 CriLJ 5060, I (2000) DMC 313 SC, JT 1999 (10) SC 260, 2000 (1) KLT 696 SC, 2000 (2) MPHT 1, 1999 (2) MPLJ 448, 1999 II OLR SC 333, (1999) 5 SCC 672

Bench: G Pattanaik, M Shah

ORDER

The short question that arises for consideration is whether the learned single Judge of the Patna High Court correctly interpreted Sub-section (3) of Section 125 of the Cr.P.C. by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned Counsel for the appellants contends that the liability of the husband arising out of an order passed under Section 125 to make payment of maintenance is a continuing one and on account of non-payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made.

We are unable to accept this contention of the learned Counsel for the appellants.

The language of Sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month, for breach of non-compliance of the order of the Magistrate the wife can approach again to the Magistrate for similar relief. By no stretch of imagination the Magistrate can be permitted to impose sentence for more than one month. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

In that view of the matter the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. The appeal accordingly fails and is dismissed.


*****************************disclaimer**********************************
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
*******************************************************************************

 

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