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2008 DIGILAW 945 (CAL)

Samiran Sen v. Arpita Sen

2008-09-23

BISWANATH SOMADDER

body2008
JUDGMENT:- (1.) The Judgment of the Court was as follows: Heard the learned advocates for the parties. (2.) This is an application under Article 227 of the Constitution of India primarily directed against an order, being order No.15 dated 24th August, 2007, passed by the learned Additional District Judge, Kalna in Miscellaneous Execution Case No.2 of 2006. (3.) The petitioner in the instant application is the husband of the opposite party. (4.) By the order impugned, the learned Court below was pleased to take the petitioner into custody on his failure to pay the outstanding maintenance claim of his wife. It appears from the order impugned that the learned Court below asked the petitioner as to whether he wanted to pay such outstanding claim to his wife who had brought the proceeding and in reply he had said that he was not in a position to make any payment and prayed for time to contact his relatives to find out a solution. The learned Court below, however, was pleased to remand the petitioner to judicial custody. (5.) From perusing the certified copy of the subsequent orders passed by the learned Court below it appears that the petitioner has been confined to a civil prison from 24th August, 2007, till date. (6.) It also appears from the records that initially this Court in C.A.N. No. 11281 of 2001 connected to F.A.T. No. 3976 of 2001 by an order dated 29th, September, 2003 inter aila granted an ad-interim order of alimony at the rate of Rs. 1000/- per month for the wife and Rs. 500/- for the child of the petitioner, which was to be paid from the month of December, 2001. In the said order, the Division Bench of this Court also directed that the current alimony for the month of September, 2003 was to be paid within 15th November, 2003 and the arrears were to be paid at the rate of Rs. 500/- per month from the month of October, 2002 onwards. The interim order was directed to continue till 31st March, 2004. (7.) Subsequently, the interim order was extended on 22nd March, 2004 till disposal of C.A.N. No. 11281 of 2001. (8.) It also appears that on 14th, November, 2005 a Division Bench of this Court passed an order in a contempt application, being C.R.C. 1009 of 2004 with C.R. No. 2425 (F) of 2003. (7.) Subsequently, the interim order was extended on 22nd March, 2004 till disposal of C.A.N. No. 11281 of 2001. (8.) It also appears that on 14th, November, 2005 a Division Bench of this Court passed an order in a contempt application, being C.R.C. 1009 of 2004 with C.R. No. 2425 (F) of 2003. For convenience, the order, in its entirety, is set out hereinbelow: "Despite several opportunities, the husband has not paid any maintenance to the wife and the only stand taken that he is unable to make the payment. It is alleged on behalf of the wife that the husband is carrying on two businesses but the learned Counsel for the husband/ rest indent submits that the husband has no means to pay. We have given him sufficient opportunity. Even in the order dated 5th of October 2005 we had given him time but nothing has been paid. The total amount appears to be Rs. 72,000 and odd; out of which only Rs.7,000 has been paid, the amount was due from 2001. In the circumstances, the Court does not have any alternative but to direct the police authorities to take the husband/respondent in custody and send him to prison after a month from this month if the husband does not pay a sum of Rs.2,000 to the wife and goes on paying at the rate of Rs. 1,500 per month to the wife and daughter every month. The wife shall be at liberty to apply before the Court below for attachment of the properties of the husband for realization of the arrear dues. Let the matter be placed before the learned Court below for passing appropriate order for sending the husband/ respondent to prison. Let a copy of this order along with the record be sent down to the Court below. The matter stands thus disposed of. There will be no order as to costs. Urgent Xerox certified copy, if applied for, be given to the parties on priority basis." (9.) It thus appears that the Division Bench of this Court by the aforesaid order dated 14th November, 2005 inter alia directed the matter to be placed before the learned Court below for passing appropriate order for sending the husband/petitioner to prison and granted liberty to the wife to apply before the learned Court below for attachment of the properties of the husband for realization of the arrear dues. (10.) The issue, that comes up for consideration before this Court in the instant application in the facts and circumstances of the instant case is whether the husband/petitioner can be kept confined to a civil prison for non compliance of the directions given by Court, beyond the period of time as prescribed in law. In this regard one may turn to the relevant provision of law prescribed under the Code of Civil Procedure, 1908 in order to ascertain the scope and powers of a Court to detain and release a person to enforce execution. Section 58 of the Code of Civil Procedure, 1908 says as follows: "58. Detention and release. (1) Every person detained in the civil prison in execution of a decree shall be so detained,-(a) where the decree is for the payment of a sum of money exceeding [[five thousand rupees], for a period not exceeding three months, and] [(b) where the decree is for the payment of a sum of money exceeding five hundred rupees, but not exceeding one thousand rupees, for a period not exceeding six weeks:] Provided that he shall be released from such detention before the expiration of the [said period of detention]- (i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or (ii) on the decree against him being otherwise fully satisfied, or (iii) on the request of the person on whose application he has been so detained, or (iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance; Provided also, that he shill not be released from such detention under clause (ii) or clause (iii), without the order of the Court. [(1A) For the removal of doubts, it is hereby declared that no order for detention of the judgment-debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed [two thousand rupees]]. [(1A) For the removal of doubts, it is hereby declared that no order for detention of the judgment-debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed [two thousand rupees]]. (2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison." (11.) From a bare perusal of the above provision of law it is clear that in no circumstances a person can be detained in a civil prison for execution of a decree beyond a period of three months. It is, therefore, not understood as to how the petitioner has been kept confined to a civil prison by the learned Court below for over a year. In my opinion, the period of detention in a civil prison beyond three months, if directed by a civil court, is beyond the scope of the relevant provision of the Code of Civil Procedure and is therefore wholly without jurisdiction and more importantly, the same amounts to violation of Article 21 of the Constitution of In dia which reads as follows: "21. Protection of life and personal liberty:-No person shall be deprived of his life or personal liberty except according to procedure established by law." (emphasis supplied) (12.) The learned Court below, as it appears, completely lost sight of the fact, that section 58 of the Code of Civil Procedure also provides a safeguard to the decree holder which is apparent from sub-section (2) of section 58. The said sub-section (2) inter alia provides that release of the judgment-debtor from detention shall not merely by reason of his release be construed as discharge of his debt. The said sub-section, however, provides that he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison. (13.) Keeping this aspect of the matter in mind, I have no hesitation to conclude that the petitioner has been kept in wrongful confinement in a civil prison for over a year, beyond the maximum period of three months, as prescribed under law, as stated above. He is thus liable to be released from prison forthwith. (13.) Keeping this aspect of the matter in mind, I have no hesitation to conclude that the petitioner has been kept in wrongful confinement in a civil prison for over a year, beyond the maximum period of three months, as prescribed under law, as stated above. He is thus liable to be released from prison forthwith. (14.) However, his release from the civil prison shall not be construed in any manner as discharge of his debts in terms of sub-section (2) of section 58 of the Code of Civil Procedure, 1908 and it shall be open to the wife/ opposite party to initiate appropriate proceedings before the learned Court below for attachment of his properties, which shall be adjudicated upon by the learned Court below as expeditiously as possible, taking into consideration the fact that the petitioner has not paid any amount in terms of the directions given by the Court. (15.) The application stands allowed accordingly. (16.) For the sake of convenience and communication, let a plain copy of this order duly counter-signed by the Assistant Registrar (Court) be given to the learned advocates of the parties on the usual undertaking. Application allowed