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Praveen Vs. Sabitha

Judgement

 
Court:HIGH COURT OF KERALA

Bench: JUSTICE Bhaskaran Pillai Sudheendra Kumar

Praveen Vs. Sabitha On 22 March 2017

Law Point:
COurt can enforce order of maintenance or interim maintenance only as provided u/s 125(3) Cr.P.C. and not by striking off contentions of Husband.

 

 

JUDGEMENT

 

1. The petitioner is the respondent in M.C. No. 215 of 2013 on the files of the Family Court, Irinjalakuda. The respondents herein are the petitioners before the court below. The respondents herein claimed an amount of ` 3,000/- to the first respondent and ` 4000/- to the second respondent towards monthly maintenance. The respondents herein contended that the petitioner herein is a Driver by profession, earning ` 20,000/- per month as wages. The petitioner herein refuted the allegation of the respondents.

2. The court below directed the petitioner herein to pay ` 3,000/- to the first respondent and ` 4000/- to the second respondent towards their monthly maintenance.

3. Heard both sides.

4. The learned counsel for the petitioner has submitted that the contentions of the petitioner were struck off by the court below on the mere reason that the petitioner did not pay the arrears of maintenance due to the respondents herein.

5. It is clear from the judgment impugned that the court below struck off the contentions of the petitioner herein on the reason that the petitioner herein did not pay the arrears of maintenance.

6. Now the question to be considered is as to whether the court below was justified or not in striking off the contentions of the petitioner herein on the reason that the petitioner herein did not pay the arrears of maintenance.

7. Section 125 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) is a measure of social justice and is specifically enacted to protect women, children and infirm parents and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions of S. 125 Cr.P.C. provide a speedy remedy to those women, children and destitute parents, who are in distress. The dominant purpose behind the benevolent provisions contained in S. 125 Cr.P.C. is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation.

8. Section 125(1) empowers the court to order maintenance or interim maintenance of wife, child or parents. Sub-section (3) of S. 125 Cr.P.C. provides as to how the order of maintenance is to be enforced. It will be beneficial to read sub-section (3) of S. 125 Cr.P.C., which is extracted hereunder:

“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:

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 xxxx.”

9. It is clear from sub-section (3) of S. 125 Cr.P.C. that if any person fails to comply with the direction of the court to pay the maintenance or interim maintenance, the 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 default to imprisonment for a term which may extend to one month or until payment, if sooner made. The first proviso to sub-section (3) of Section 125 Cr.P.C. provides that no warrant shall be issued for the recovery of any amount due, unless application is made to the court to levy such amount within a period of one year from the date on which it became due. Section 125(3) Cr.P.C. does not create any bar on the entitlement of a claimant to arrears of maintenance or interim maintenance. What the proviso contemplates is that the procedure for recovery of maintenance under Section 125(3) Cr.P.C., 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. The above view is supported by the decision of the Hon’ble Apex Court in Poongodi & Anr. v. Thangavel MANU/SC/0991/2013 : (2013 (3) KLT Suppl. 93 (SC) : AIR 2014 SC 24 : 2013 KHC 4784).

10. The Apex Court in Kuldip Kaur v. Surinder Singh & Anr. (MANU/SC/0451/1988 : AIR 1989 SC 232 : 1989 KHC 316) held that the provision of sentencing under Section 125(3) Cr.P.C. is a “mode of enforcement” as distinguished from the “mode of satisfaction” of the liability, which can only be by means of actual payment. The Apex Court in Kuldip Kaur’s case (supra) held in paragraph 6 this:-

“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.”
The sentencing is the means for achieving the end of enforcing the order for recovering the amount of arrears and it is not a mode of discharging the liability. It is only a mode or method of recovery and not a substitute for recovery. It is clear from the above discussion that the court can enforce the order of the court granting maintenance or interim maintenance only as provided under Section 125(3) Cr.P.C. and not by striking off the contentions. The striking off the contentions of the petitioner is neither a mode of enforcement nor a substitute for recovery. For the said reason, the court below was not justified in striking off the contentions of the petitioner herein on the reason that the petitioner herein did not pay arrears of interim maintenance. If the petitioner fails to pay the arrears of maintenance as directed by the court, the court shall be at liberty to enforce its order as provided under Section 125(3) Cr.P.C. and not by striking off the contentions of the petitioner as had been done by the court below. Since the court below had struck off the contentions of the petitioner herein, the petitioner could not adduce evidence to substantiate his contentions. Since the court below was not justified in striking off the contentions of the petitioner herein, the order impugned cannot be said to be legal, proper and correct and consequently, the same cannot be sustained.

11. In the result, this R.P.(FC) stands allowed, setting aside the order in M.C. No. 215 of 2013 on the files of the court below and the matter is remitted to the court below to pass order afresh in M.C. No. 215 of 2013 in accordance with law, affording reasonable opportunity to both sides of being heard. The petitioner shall deposit an amount of ` 40,000/- (Rupees Forty thousand only) before the court below within 10 days from the date of receipt of a copy of this order by the court below and another amount of ` 40,000/- (Rupees Forty thousand only) after 15 days thereafter towards arrears of interim maintenance to the respondents herein as agreed by the learned counsel for the petitioner.

If the petitioner deposits any amount, the first respondent herein shall be at liberty to withdraw the same from the court below. If the petitioner fails to deposit the amount as directed above, the court below shall take steps to enforce the above direction of payment of interim maintenance.

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