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Saturday, September 28, 2013

Sec.125 (3) of Cr.P.C. - When first petition not satisfied even after arrest of husband, another petition for arrears of maintenance from the date of order to till the day of new petition can not be considered as Time Barred as it is in continuation of old petition and for subsequent defaults = As the respondent-husband had not complied with the order of payment, in a miscellaneous petition, i.e., C.M.P. No. 566/1998 filed by the appellant, the trial court by its order dated 21.07.1998 had sentenced the respondent to imprisonment. The default in payment of maintenance was for the period 4.2.1993 to 4.2.1998. On 5.2.2002 another miscellaneous application (Crl.M.P. No.394/2002) was filed by the appellants claiming maintenance for the period 4.2.1993 to 5.2.2002. - As the aforesaid order of the High Court had curtailed the entitlement of the appellants to maintenance to a period of one year prior to the date of filing of the Crl. M.P. No. 394/2002, the appellants have filed this appeal.= The application dated 05.02.2002 filed by the appellants under Section 125(3) was in continuation of the earlier applications and for subsequent periods of default on the part of the Respondent. The first proviso to Section 125(3), therefore did not extinguish or limit the entitlement of the appellants to the maintenance granted by the learned trial court, as has been held by the High Court.= The order dated 21.04.2004 of the High Court is set aside and we now issue directions to the respondent to pay the entire arrears of maintenance due to the appellants commencing from the date of filing of the Maintenance Petition (M.C.No.1/1993) i.e. 4.2.1993 within a period of six months and current maintenance commencing from the month of September, 2013 payable on or before 7th of October, 2013 and thereafter continue to pay the monthly maintenance on or before the 7th of each successive month. If the above order of this Court is not complied with by the Respondent, the learned Trial Court is directed to issue a warrant for the arrest of the respondent and ensure that the same is executed and the respondent taken into custody to suffer imprisonment as provided by Section 125(3) CrPC. The appeal is allowed.

      published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40838
                               REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1542 OF 2013
                (ARISING OUT OF SLP (CRL.) NO. 4654 OF 2005)

Poongodi & Anr.                         ...  Appellant(s)
                                   Versus
Thangavel                                    ...   Respondent(s)

                               J U D G M E N T

RANJAN GOGOI, J.


      Delay condoned.   Leave granted.
2.    The appellants are the wife and son of one  Thangavel.   By  an  order
dated 12.01.1998 passed by the learned trial court each  of  the  appellants
have been granted maintenance @      Rs. 300/- per month  w.e.f.  04.02.1993
i.e. date of filing of the application under Section  125  of  the  Code  of
Criminal Procedure (CrPC).
As the respondent-husband had not  complied  with
the order  of  payment,  in  a  miscellaneous  petition,  i.e.,  C.M.P.  No.
566/1998 filed by  the  appellant,  the  trial  court  by  its  order  dated
21.07.1998 had sentenced the respondent to  imprisonment.   
The  default  in
payment  of  maintenance  was  for  the   period   4.2.1993   to   4.2.1998.
On     5.2.2002     another     miscellaneous     application      (Crl.M.P.
No.394/2002) was filed  by  the  appellants  claiming  maintenance  for  the
period  4.2.1993  to  5.2.2002.  
The  same  was  allowed  by  the   learned
Magistrate on 31.12.2002 against which the respondent had  filed  Crl.  R.C.
No. 620/2003.
The High Court by its order  dated  21.4.2004  held  that  as
Crl.M.P. No. 394/2002 was filed on 5.2.2002,  under  the  first  proviso  to
Section 125(3) CrPC, the appellants were entitled to claim arrears  for  the
period of one year preceding the date of  filing  of  the  application  i.e.
from 4.2.2001  to  5.2.2002.   
Accordingly,  the  High  Court  directed  the
respondent (revision petitioner before  it)  to  pay  the  arrears  for  the
aforesaid period within two months failing which it  was  directed  that  an
arrest warrant would be issued against the respondent and  the  sentence  of
imprisonment earlier imposed by  the  learned  Magistrate  would  come  into
effect.  
As the  aforesaid  order  of  the  High  Court  had  curtailed  the
entitlement of the appellants to maintenance to a period of one  year  prior
to the date of filing of the Crl. M.P. No.  394/2002,  the  appellants  have
filed this appeal.

3.    We have heard learned counsel for the parties.
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.   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.[1] 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. 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:


      ……….  ….”


6.    In another decision of  this  Court  in  Shantha  alias  Ushadevi  and
Another v. B.G. Shivananjappa[2]
it has been held that the liability to  pay
maintenance under Section  125  CrPC  is  in  the  nature  of  a  continuing
liability.   
The  nature  of  the  right  to  receive  maintenance  and  the
concomitant liability to pay was also noticed in a decision  of  this  Court
in Shahada Khatoon & Ors. v. Amjad Ali &  Ors.[3].   
Though  in  a  slightly
different context, the remedy to approach the court by means  of  successive
applications under Section 125(3) CrPC highlighting the subsequent  defaults
in payment of maintenance was acknowledged by this Court in Shahada  Khatoon
(supra).

7.    The ratio of the decisions in the aforesaid cases  squarely  apply  to the present case.  
The application dated 05.02.2002 filed by the  appellants
under Section 125(3) was in continuation of  the  earlier  applications and for subsequent periods of default on the part of the Respondent.  
The  first
proviso to Section  125(3),  therefore  did  not  extinguish  or  limit  the
entitlement of the appellants to the  maintenance  granted  by  the  learned
trial court, as has been held by the High Court.

8.    In view of the above, we are left in no doubt that  the  order  passed
by the High Court needs to be interfered with by  us  which  we  accordingly
do.
The order dated 21.04.2004 of the High Court is set aside  and  we  now
issue directions to the respondent to pay the entire arrears of  maintenance
due to the appellants commencing from the date of filing of the  Maintenance
Petition (M.C.No.1/1993) i.e. 4.2.1993 within a period  of  six  months  and
current maintenance commencing from the month of September, 2013 payable  on
or before 7th of October, 2013 and thereafter continue to  pay  the  monthly
maintenance on or before the 7th of each successive  month.   If  the  above
order of this Court is not complied with  by  the  Respondent,  the  learned
Trial Court is directed to issue a warrant for the arrest of the  respondent
and ensure that the same is executed and the respondent taken  into  custody
to suffer imprisonment as provided by Section 125(3) CrPC.
      The appeal is allowed.



                                                    ..………………………..………………………J.
                               [SUDHANSU JYOTI MUKHOPADHAYA]





                                                    ..………………………..………………………J.
                               [RANJAN GOGOI]
NEW DELHI
SEPTEMBER 27, 2013
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[1]    (1989) 1 SCC 405
[2]    (2005) 4 SCC 468
[3]    (1999) 5 SCC 672

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