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2020 DIGILAW 538 (KER)

Abdul Samad K v. Hasnath C. P.

2020-06-29

MARY JOSEPH

body2020
ORDER : In view of the illegality involved in the order under challenge, this Court finds it just and proper to dispense with notice to the respondent as it would prejudice the revision petitioner and perpetrates injustice. 2. The order under challenge before this Court is one passed by Family Court, Tirur on 04.11.2019 in Crl.M.P (Ex.) No.01/2018 in M.C No.150/2016. As per the order passed by the Family Court on 26.09.2017 in M.C No.150/2016, the revision petitioner was directed to pay Rs.5,000/- as monthly maintenance to the respondent. For the reason that an amount of Rs.1,05,000/- is due as arrears of maintenance for a period from 22.03.2016 to 10.12.2017, Crl.M.P was moved before the Family Court by the respondent pressing for execution of the order. Notice was issued to the revision petitioner. Owing to non-appearance of the revision petitioner and non-payment of the sum due as arrears, the Family Court has issued distress warrant for recovery of the amount from the revision petitioner on 04.04.2018. The exercise was totally futile and thereupon the Family Court resorted to remedy the situation by issuing a non bailable warrant against the revision petitioner. The revision petitioner was constrained to appear before the Court on 05.09.2018 and paid Rs.20,000/-. The failure to make the balance remained due caused issuance of non bailable warrant again. In execution of the warrant, the revision petitioner was arrested and produced before the Court. He was asked to explain about his failure to deposit the maintenance amount and to show cause why he shall not be sentenced. On failure of the revision petitioner to explain and show cause, the Family Court had issued an order sentencing him to imprisonment in civil prison for 17 months i.e. one month each for every months' default. The court also clarified in the order that on payment of monthly maintenance of Rs.5,000/-, proportionate sentence for one month shall be reduced but the release from confinement will only be after payment of the arrears of maintenance in full. 3. Being aggrieved by the order, the revision on hand is filed. For the sake of convenience, the parties will be referred to hereinafter as the respondent and the petitioner. 4. It is contended by Sri.Prem Navaz, the learned counsel for the respondent that the order under challenge is illegal and infirm. 3. Being aggrieved by the order, the revision on hand is filed. For the sake of convenience, the parties will be referred to hereinafter as the respondent and the petitioner. 4. It is contended by Sri.Prem Navaz, the learned counsel for the respondent that the order under challenge is illegal and infirm. According to him, by virtue of an order issued by Family Court on 04.11.2019, the respondent has been in confinement in civil prison for the last seven months. According to him, at the time when the impugned order was passed, he was sentenced to imprisonment in civil prison for 17 months, i.e. one month each for each month's default. The learned counsel has invited this Court's attention to the dictum of the Apex Court in Shahada Khatoon Vs. Amjad Ali [2000 KHC 128], which holds that the Magistrate has no power to impose sentence for more than one month and the wife has every right to approach the court for any further violation or non compliance of the order. 5. Sub-Section (3) of Section 125 Cr.P.C is apposite extraction hereunder to have an idea on the legislative intent behind; “(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 for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] 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 : (emphasis supplied) 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 refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an 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 his wife's refusal to live with him.” 6. By virtue of the above provision, the Magistrate is empowered to issue a warrant for levying the amount in arrears 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 even after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. It is true a confusion is created by the words used in the provision regarding the term of imprisonment i.e. “one month or until payment if sooner made”. It is pertinent to note that if the words 'until payment' is read in exclusion of the words “payment if sooner made”, undoubtedly it gives only an indication that the defaulter can be in confinement for any duration till the payment is made. But, “payment if sooner made”, incorporated in the provision indicates that if the sum defaulted is paid soon after confinement, then the term of imprisonment need not be extended beyond the date of payment or in other words, the confinement need not be prolonged to one month. If an interpretation that the defaulter is liable to be detained until payment of the entire arrears is made is taken it would only defeat the purpose underlying that each default of monthly maintenance shall be met with by imprisonment in civil prison for a period to the maximum of one month. Moreover, it is made clear by the 1st proviso to Sub-Section (3) of Section 125 that an application seeking to levy the amount shall be made within a period of one year from the date on which the payment is due. Therefore, the proviso, restrains the court from exercising the jurisdiction to issue non-bailable warrant in an application filed after one year from the date on which the payment of monthly maintenance is due. 7. Therefore, the proviso, restrains the court from exercising the jurisdiction to issue non-bailable warrant in an application filed after one year from the date on which the payment of monthly maintenance is due. 7. In the case on hand arrears of maintenance for a period of 17 months is sought to be realised by filing a single application after 1½ years of passing of the order in the M.C. In view of the 1st proviso referred to above, the court is devoid of jurisdiction to entertain an application filed by the wife seeking for issuance of warrant after one year of default in making payment. Therefore, issuance of non-bailable warrant in an application filed by the wife alleging default of payment of arrears of maintenance for a period of 17 months itself is illegal and calls for interference. 8. In Shahada Khatoon supra cited by the learned counsel for the respondent the only question that arises for consideration is whether the learned Single Judge of Patna High Court was correct in interpreting sub-section (3) of Section 125 Cr.P.C and issuing a direction that the Magistrate can only sentence the defaulter for a period of one month or until payment, if sooner made. The counsel for the appellants contended before Apex Court in the appeal preferred against the impugned order that the liability of the husband arising out of an order passed under Section 125 Cr.P.C to make payment of maintenance is a continuing one and in the event of nonpayment, there has been a breach of the order and the Magistrate is empowered to order for his continuance in custody until payment is made. The Apex Court outrightly discarded the contention and held that the Magistrate in cases where default is apprised, is empowered to sentence the defaulter only for one month and thus directed to maintain the order passed by the High Court. It is further held that for breach or non-compliance of the order directing payment of monthly maintenance, the wife can approach the Magistrate again to obtain the similar relief. 9. The legal position being settled in such a manner, the Family Court undoubtedly has acted illegally in interpreting subsection (3) of Section 125 Cr.P.C to the contrary and imposing the defaulter with punishment for a continuous period of 17 months. 9. The legal position being settled in such a manner, the Family Court undoubtedly has acted illegally in interpreting subsection (3) of Section 125 Cr.P.C to the contrary and imposing the defaulter with punishment for a continuous period of 17 months. The Family Court has also ignored the constitutionally guaranteed fundamental right under Article 21 that a person's personal liberty can be curtailed only on the basis of a procedure established by law. In the case on hand, when the Code prescribes the maximum term for which a defaulter of payment of monthly maintenance can be sentenced as one month and when the 1st proviso prescribes a limitation period of one year from the date on which the amount is due for making an application to levy the amount, the Family Court ought not to have entertained the application filed by the respondent in the case on hand and directed confinement of the revision petitioner to a period of 17 months. The Magistrate is not permitted to impose sentence for more than one month. The order is undoubtedly illegal and calls for interference. In the result, RP(FC) stands allowed. The order passed by the Family Court on 04.11.2019 in Crl.MP (Ex.) No.01 of 2018 in M.C. No.150 of 2016 stands set aside. The revision petitioner is ordered to be released from detention forthwith.