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2006 DIGILAW 609 (MAD)

Udayasuriyan v. Lakshmi & Another

2006-03-03

S.SARDAR ZACKRIA HUSSAIN

body2006
Judgment :- (Criminal Revision Case filed under Sections 397 and 401 of Criminal Procedure Code against the Order dated 17.6.2003 and made in Crl.M.P.No.2542 of 1997 on the file of the Judicial Magistrate No.I, Gobichettipalayam(In-charge).) The revision petitioner is the husband of the first respondent and the revision is directed against the order of Judicial Magistrate No.I, Gobichettipalayam (In-charge) sentencing the revision petitioner to undergo 12 months rigorous imprisonment for non-payment of the arrears of maintenance amount payable for 45 months towards the period from 6.1.1994 to 13.10.1997 as ordered in C.R.P.No.24 of 1997 on the file of the Second Additional Sessions Judge, Erode, as per order dated 6.7.1998. 2. The first respondent herein is the wife of the revision petitioner and the second respondent herein is their son. First respondent for herself and on behalf of her minor son, the second respondent, filed M.C.No.1 of 1994 claiming maintenance at the rate of Rs.300/- per month to each of the respondents herein. The maintenance petition in M.C.No.1 of 1994 was ordered on 13.8.1997 directing the revision petitioner to pay maintenance at Rs.300/- per month to each of the respondents, which order was modified by the Second Additional Sessions Judge, Erode as per order dated 6.7.1998 in C.R.P.No.24 of 1997 that the first respondent herein is entitled to Rs.300/- per month and the second respondent is entitled to Rs.250/- per month as maintenance from the revision petitioner and accordingly, till 13.10.1997, the revision petitioner is liable to pay Rs.13,500/- to the first respondent and Rs.11,250/- to the second respondent. Since the revision petitioner failed to pay the maintenance amount, the respondents herein filed C.M.P.No.2542 of 1997 for recovery of the maintenance arrears amount by sending the revision petitioner to jail. In that petition, though the revision petitioner entered appearance and took time to pay the maintenance arrears amount, he failed to pay the same, which made the Judicial Magistrate directing the revision petitioner to undergo 12 months rigorous imprisonment for non-payment of the arrears of maintenance of Rs.24,750/-. The order is under challenge in this revision. 3. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 4. The order is under challenge in this revision. 3. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 4. Learned counsel for the revision petitioner argued that as per Section 128 of Criminal Procedure Code, the respondents are entitled to file application for one year arrears from the date on which it became due and warrant is to be restricted and accordingly, the claim as well as warrant issued for non-payment of maintenance arrears amount of Rs.24,750/- for 45 months, being improper, is to be set aside. 5. The learned counsel for the respondents submitted that inasmuch as the maintenance petition in M.C.No.1 of 1994 was ordered on 13.8.1997 to pay maintenance at Rs.300/- per month to each of the respondents, which was modified as per order dated 6.7.1998 in C.R.P.No.24 of 1997 that the first respondent herein is entitled to Rs.300/- per month and the second respondent is entitled to Rs.250/- per month as maintenance from the revision petitioner and accordingly, till 13.10.1997, the revision petitioner is liable to pay Rs.13,500/- to the first respondent and Rs.11,250/- to the second respondent, and since the revision petitioner failed to pay the maintenance amount, the respondents herein filed C.M.P.No.2542 of 1997, subject matter of this revision, claiming the said amount and such petition was only supplementary or incidental to the main petition, and in that petition, though the revision petitioner entered appearance and took time to pay the maintenance arrears amount, he failed to pay the same, which made the Judicial Magistrate directing the revision petitioner to undergo 12 months rigorous imprisonment for non-payment of the arrears of maintenance of Rs.24,750/- and as such, there is no irregularity in the claim so made and the order passed which is under challenge in this revision. The learned counsel also relied on the decision in Shantha vs. B.G.Shivananjappa reported in (2005)4 Supreme Court Cases 468, in which the Hon'ble Supreme Court held thus:- "We are, therefore, of the view that in the peculiar circumstances of the case, the bar under Section 125(3) cannot be applied and the High Court has erred in reversing the order of the Sessions Judge. It must be borne in mind that Section 125 Cr.P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It must be borne in mind that Section 125 Cr.P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under Section 125(1) is a continuing liability." 6. The fact remains that the revision petitioner failed to pay the maintenance arrears amount of Rs.24,750/-, which made the respondents to file Crl.M.P.No.2542 of 1997 in which since, despite time granted the revision petitioner failed to pay the said amount, the Judicial Magistrate directed the revision petitioner to undergo 12 months rigorous imprisonment. It is settled as per the ruling of the Hon'ble Supreme Court, that under Section 125(3) of Criminal Procedure Code, application need not be filed for every year claiming maintenance amount inasmuch as the liability to pay the maintenance amount has already been fixed in the order passed under Section 125(1) Cr.P.C. which is a continuing liability. As such, the order passed by the Judicial Magistrate, directing the revision petitioner to undergo rigorous imprisonment for one year for non-payment of maintenance arrears being proper and not erroneous is to be confirmed. 7. In the result, this Criminal Revision Case is dismissed. The order dated 17.6.2003 and made in Crl.M.P.No.2542 of 1997 on the file of the Judicial Magistrate No.I, Gobichettipalayam(in-charge) is confirmed. The bail bond executed by the revision petitioner is cancelled. The Judicial Magistrate No.I, Gobichettipalayam is directed to secure the custody of the revision petitioner to undergo the remaining period of sentence.