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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

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

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
———————–
[1] (1989) 1 SCC 405
[2] (2005) 4 SCC 468
[3] (1999) 5 SCC 672

 

———————–
7

 

 

 

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