Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 1524 (ALL)

Subodh Kumar Nigam v. State Of Uttar Pradesh

2024-06-04

AJIT KUMAR

body2024
JUDGMENT : Ajit Kumar, J. 1. Heard Sri Dhanesh Kumar Verma, learned Advocate holding brief of Sri Sudhakar Shukla, learned counsel for the petitioner and Sri Anant Ram Gupta, learned counsel for the contesting respondents. 2. In this criminal revision filed before this Court a question has been raised as to the propriety of the court concerned in passing an order for payment of arrears towards maintenance for a sum of Rs. 57,000/- by the Additional Principal Judge, Court No. 3, Kanpur Nagar. 3. Submission advanced is that the arrears that have been directed to be paid to the opposite party no. 2 relate to the period starting from the month of March 2021 to September 2022 and since the application for payment thereof came to be filed only on 21.11.2022, it got hit by sub section (3) of Section 125 of Cr.P.C. It is contended that sub section (3) of Section 125 Cr.P.C. puts a fetter upon the right of opposite party to recover the maintenance amount beyond period of one year and accordingly, as has been argued, the Additional Principal Judge, Family Court has wrongly construed the relevant provision in passing the order. 4. Learned counsel for the revision applicant has also submitted that the very judgment relied upon by the Judge, Family Court helps him out in assailing the order passed by the Judge which very much interprets the provisions. 5. Per contra it is argued by Sri Gupta, learned counsel for the contesting opposite party that the first application for recovery of an earlier amount came to be filed on 14.12.2020 and since the claim for maintenance amount is a recurring cause of action therefore, if the applicant husband has failed to pay any amount of maintenance on month to month basis then such cause of action will continue to be rendered as continuing cause of action month by month as such and will not be hit by Section 125(3) Cr.P.C. 6. Thus, it is argued that the judgment which has been relied upon by the Judge, Family Court correctly interprets the law as it holds that the right to recover the amount as far as regular maintenance is concerned, is not hit by Section 125(3) Cr.P.C. 7. Thus, it is argued that the judgment which has been relied upon by the Judge, Family Court correctly interprets the law as it holds that the right to recover the amount as far as regular maintenance is concerned, is not hit by Section 125(3) Cr.P.C. 7. Besides the above, it is submitted by Sri Gupta that taking the provisions as have been incorporated by the legislature the monthly maintenance claim does not become a time barred claim. All that is to be seen, according to Mr. Gupta, as to what mode of the recovery of amount is to be adopted. He submits that a coercive measure by arresting a person may not be a remedy available to the opposite party beyond the prescribed period of one year but a right to claim maintenance or arrears of maintenance pursuant thereto in order to claim maintenance month by month, does not get adversely affected or prejudiced merely for an application being filed beyond prescribed period of one year. 8. Having heard learned counsel for the respective parties and having perused the records, I find that the order of maintenance allowing the application under Section 125 Cr.P.C. which was passed on 09.05.2018 very clearly provided that the application under Section 125 Cr.P.C. was being granted and Rs. 3,000/- shall be paid towards the maintenance to the opposite party-applicant as the opposite party was held entitled to a maintenance from her husband. This thus goes unequally that monthly maintenance was to be paid by the present applicant to the opposite party for rearing up the minor children. However, it transpires further from the record that earlier also some arrears had became due to be paid to the opposite party at the end of the applicant and accordingly she had moved an application on 14.12.2020 to recover the amount of Rs. 24,000/- which was subsequently paid by the applicant to the opposite party. However, later on he again did not pay the amount as far as arrears are concerned and therefore, amount accrued to Rs. 27,000/- between March 2021 and September 2022. It is for the recovery of this amount that the application came to be moved by the opposite party in October 2022 which was claimed to be beyond prescribed period of time. 9. 27,000/- between March 2021 and September 2022. It is for the recovery of this amount that the application came to be moved by the opposite party in October 2022 which was claimed to be beyond prescribed period of time. 9. Section 125 Cr.P.C. is an enabling provision in so far as a deserted/ neglected wife claims maintenance from her husband, more so along with her children and this right vests with parents as well. It is kind of summary proceedings to be instituted at the end of application made by wife or the children or by the parents from a person who is the earning member of the family and is under an obligation to maintain them. After inviting objections and meeting the points of contentions a Magistrate has been empowered to pass orders on merit for maintenance. Off-late this power is transferred/vested with the Judge, Family Court on the constitution of Family Court under the Family Courts Act, 1984. A court when passes a decree or order which is continuing in the nature, it is to be seen as to in what manner a fetter of limitation can be imposed for recovery of such amount of maintenance. Off-late this power is transferred/vested with the Judge, Family Court on the constitution of Family Court under the Family Courts Act, 1984. A court when passes a decree or order which is continuing in the nature, it is to be seen as to in what manner a fetter of limitation can be imposed for recovery of such amount of maintenance. For ready reference sub section (3) of Section 125 is reproduced hereunder: "(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 port of each month's allowance 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; 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." (Emphasis added) 10. From a bare reading of the main provision as contained under sub section (3) of Section 125 Cr.P.C. it is explicit that the Magistrate has been vested with the power to issue warrant for remaining of the amount due in the manner provided for levying fines and may sentence such person for whole or part of each month's allowance for maintenance or if for interim maintenance and expenses of proceedings, as the case may be. This is a coercive measure contemplated under sub section (3) of Section 125 Cr.P.C. The legislature has been conscious enough to provide for a proviso, where a wife may be not vigilant to her rights in recovering the amount in time and therefore, no such coercive measure for issuing warrant of arrest etc. will be issued. This is what is contemplated in the first proviso to sub section (3) of Section 125 Cr.P.C. The Courts have been interpreting the provision to mean that such coercive measure should not be adopted where the wife or any claimant under Section 125 Cr.P.C. has not been pursuing for recovery of arrears for over a year but that does not mean that the right to recover arrears is lost. This could not be the intendment of the legislature in incorporating the first proviso, otherwise the language of the first proviso could have been conched in a manner that no recovery would be made in respect of the arrears beyond the period of one year. All that is provided is that no warrant will be issued. Thus, it is very much clear that fetter has been placed upon the mode of recovery in a sense that a person who is liable to pay such dues will not be arrested. However, other modes of recovery can be adopted to as may be considered by the court concerned to be justified. 11. In my above view, I find support from the judgment of Supreme Court in the case of Poongodi & Another vs. Thangavel (2013) 10 SCC 618 in which vide paragraph nos. 4 & 5 the Court has held thus: "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. 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. 5. The decision of this Court in Kuldip Kaur v. Surinder Singh and Anr. 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. 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: ………. …." (Emphasis added) 12. The Court has also gone on to hold that the maintenance is in the nature of continuing liability. 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: ………. …." (Emphasis added) 12. The Court has also gone on to hold that the maintenance is in the nature of continuing liability. The nature of the right to receive maintenance and concomitant liability to pay was also noticed earlier by the Supreme Court in the case of Shahada Khatoon & others v. Amjad Ali and others, (1995) 5 SCC 672 vide paras 6 & 7 but the Court held that husband cannot be kept in jail till payment is made. The court in its operative part of order has observed thus: "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 or non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief." 13. The Supreme Court, therefore, in the said case set aside the order of High Court where the High court had declined arrears of maintenance to the wife from the husband as it was claimed beyond the period of one year and Supreme Court directed the husband to make payment of arrears. 14. In such above view of the matter, therefore, I do not see that the Judge, Family Court in any manner has wrongfully exercised jurisdiction in granting the application for recovery of the maintenance holding the opposite party to be entitled to the same. Similar view was taken by Supreme Court in another judgment of Shantha @ Ushadevi and another v. B.G. Shivananjappa, AIR SC 2410 the Court has observed thus: "It must be borne in mind that Section 125 CrPC 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 Section125(1) is a continuing liability." 15. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under Section125(1) is a continuing liability." 15. In so far as the judgment relied upon by the learned counsel for the respondents of the Bombay High Court in the case of Dr. Chandrashekhar v. Sau. Jayshree, I (1989) DMC 235 and the judgment of coordinate bench of this Court in Ganga Prasad v. Smt. Gomti, 2000 Cri.L.J. 3914, are concerned they are no more a good law in the light of judgments of Supreme Court (supra). In these two judgments cited before me, the High Court declines the claim of wife to recover the maintenance beyond a period of one year or if there was a complete bar to recover the amount. These judgments including the judgment in the case of Lav Kumar v. State of Uttar Pradesh & Another, Application U/S 482 No. 20081 of 2021 (decided on 13.05.2022) being contrary to the view taken are no more binding precedent for this Court. 16. At this stage, before the court proceeds to decide the matter on merits, learned counsel for the petitioner submits that given a respite in terms of payment of the arrears of amount, he would have no objection if Rs. 3,000/- is additionally directed to be deducted from the salary of the petitioner till the arrears of Rs. 57,000/- is satisfied. 17. Now, since learned counsel for the revision applicant is ready to pay the amount of Rs. 3,000/- per month and submits that, that may also be directed to be deducted from the salary of the applicant, it is hereby provided that Rs. 3,000/- in addition to already Rs. 3,000/- being deducted from the salary of the applicant, shall be deducted from the salary from the month of July 2024 till the entire arrears of maintenance of Rs. 57,000/- is satisfied. Learned counsel for the applicant shall place this order before his employer as well as the Judge, Family Court and so also the opposite party shall place this order before the Family court for appropriate orders. 18. With these observations and directions, this petition stands disposed of.