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2011 DIGILAW 84 (ORI)

Kasinath Sethy v. Sanjukta Sethi

2011-02-09

S.K.MISHRA

body2011
JUDGMENT S.K. MISHRA, J. — The short question which arises for determination in this revision is whether the imprisonment of the petitioner-husband in pursuant to the order passed by the learned Judge, Family Court, Cuttack, for default of non-payment of the maintenance shall absolve him from payment of maintenance to his wife. 2.The Petitioner challenged the order dated 09.10.2009 passed by learned Judge, Family Court, Cuttack, in Crl. Proceeding No. 677 of 1995. Initially a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) was instituted by the opposite parties before the Court for maintenance and it was registered as CRP No. 451 of 1994. The said proceeding was disposed of as ex parte on 27.10.1995 by the learned Judge, Family Court, Cuttack. Learned Judge, Family Court allowed the maintenance @ Rs.3000/- per month to opposite party no.1, who happens to be the wife, and Rs.100/- each to the opposite parties 2 and 3, minor sons of the present petitioner. Opposite parties thereafter filed an application under Section 125(3) of the Code for arrear maintenance from 31.8.1994 to 30.4.2004 amounting to Rs.52,000/-. The petitioner, in spite of notice, did not appear before the learned Judge, Family Court, Cuttack. Therefore, learned Judge, Family Court issued warrant of arrest against him. He was arrested and produced before the learned Judge, Family Court, Cuttack, on 16.12.2004 and was remanded to jail. Thereafter on completion of one month incarceration the petitioner was released by learned Judge, Family Court on 08.2.2005. The opposite parties thereafter filed an application on 30.10.2008 before the learned Judge, Family Court, Cuttack, claiming arrear maintenance from 31.8.1994 to the end of September, 2008 amounting to Rs.74,000/- from the petitioner. The petitioner filed an objection to such application on the ground that the application is not maintainable. It was contended that the petitioner has already been punished for non-payment of arrear for the period from 31.8.1994 to 28.2.2004 and as such he is not liable to pay Rs.52,000/- out of the claim of Rs.74,000/-. It is further contended that after serving punishment, learned Judge, Family Court should have dropped the aforesaid execution proceeding. 3.On the face of such contentions, learned Judge, Family Court, Cuttack, held that the period undergone is for a month thereon, the petitioner is liable to pay Rs.82,500/- and issued N.B.W. against him. Such order has been assailed in this revision. It is further contended that after serving punishment, learned Judge, Family Court should have dropped the aforesaid execution proceeding. 3.On the face of such contentions, learned Judge, Family Court, Cuttack, held that the period undergone is for a month thereon, the petitioner is liable to pay Rs.82,500/- and issued N.B.W. against him. Such order has been assailed in this revision. Alleviate. 4.Section 125 of the Code is a benevolent provision aimed at eliminating vagrancy and for providing speedy remedy to persons, who do not have the means to maintain themselves, against persons who are under legal obligation to maintain them, but who without any just cause refuses to maintain them. Section 125 of the Code provides for an order for maintenance to wives, children and parents. A Magistrate upon being satisfied about the proof of negligence or refusal on the part of the person from whom monthly allowance for the maintenance of his wife, child, father or mother, as the case may be, is due, upon being satisfied about the fact that the person has sufficient means, may pass an order for monthly maintenance under sub-sections (1) and (2) of Section 125 of the Code. The mode of enforcement of such an order has been provided under Section 128 of the Code, which reads as follows: “128. Enforcement of order of maintenance - A copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due.” 5.Sub-section (3) of Section 125 of the Code provides punishment for non-compliance of the order of maintenance allowance passed by the learned Magistrate. It is apposite to quote the same:- “Sub-section (3) of Section 125 - If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of 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 for the maintenance or the interim maintenance and expenses of proceeding, as the case maybe) 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.” Interpreting sub-section (3) of Section 125 of the Code, Hon’ble Supreme Court in the case of Shahada Khatoon and others v. Amjad Ali and others, 1999 AIR SC 4880, has held that 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. 6.Thus, it is clear for every breach of the order by husband in a case filed by the wife, the only course open to the wife is to file an application for imprisonment for one month. The course adopted by the learned Judge, Family Court in reducing the amount of maintenance by Rs.500/- is erroneous. This is because in the case of Smt. Kuldip Kaur v. Surinder Singh and another, AIR 1989 SUPREME COURT 232, the Hon’ble Supreme Court interpreting the provision has held that the distinction has to be made between a mode of enforcing recovery of maintenance allowance 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’. The Apex Court has in clear terms laid down that it is not a ‘mode of satisfaction’ of the liability. The liability can be satisfied only by making actual payment of the arrears. Sentencing a person to Jail is a ‘mode of enforcement’. The Apex Court has in clear terms laid down that 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 the defaulter 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. The Apex Court further ruled 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 cannot be said 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 recovery of the monthly allowance, which has fallen in arrears. It is not a mode of discharging liability. The Section does not say so. 7.Thus, it is clear that the contentions raised by the learned counsel for the petitioner that once the petitioner has suffered incarceration for default of payment of the maintenance allowance shall absolve from making payment of the said arrear amount is fallacious and is not acceptable in view of the rulings given by the Hon’ble Supreme Court in the case of Smt. Kuldip Kaur (supra). 8.However, while examining records it is found that the ex parte order of maintenance was made on 27.10.1995. They should have filed an application on or before 26.10.1996. However, they filed an application on 20.4.2004. Thereafter, the opposite parties did not file an application till 30.10.2008. On 30.10.2008 they have filed an application for recovery of the amount for the period from 31.8.1994 to the end of September, 2008 and the total amount was calculated to be Rs.74,000/-. They should have filed an application on or before 26.10.1996. However, they filed an application on 20.4.2004. Thereafter, the opposite parties did not file an application till 30.10.2008. On 30.10.2008 they have filed an application for recovery of the amount for the period from 31.8.1994 to the end of September, 2008 and the total amount was calculated to be Rs.74,000/-. However, in the first proviso to sub-section (3) of Section 125 of the Code, it is 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. Therefore, the applications, which have been filed in April 2004 and October, 2008 can be entertained only for recovery of the preceding twelve month’s of maintenance allowance. Thus, the order impugned requires for modification to that extent. The learned Judge, Family Court, Cuttack, is directed to recalculate the arrear maintenance and issue fresh NBW/DW. With the aforesaid observation, the RPFAM is disposed of. The interim order passed earlier is vacated and the Misc. Case No. 62 of 2010 is disposed of being infructuous. RPFAM disposed of.