Court:Rajasthan High Court
Bench: JUSTICE P.K. LOHRA
Yusuf Shah vs Rubi Bano @ Beby & Ors on 19 February 2018
Sentence of imprisonment only a mode of enforcement of direction to pay amount of maintenance and not as punishment.
In Criminal Revision Petition No.130/2016, the order which was passed by learned Court below on respondent’s application under sub-section (3) of Section 125 Cr.P.C. for recovery of arrears of maintenance to the tune of Rs.92,250/-, the learned Court below has handed down sentence of six months’ simple imprisonment to the petitioner by taking shelter of Section 67 of the IPC. Likewise, in Criminal Revision No.131/2016, learned Court below, upon consideration of identical application of the respondent under sub-section (3) of Section 125 Cr.P.C. for recovery of maintenance of arrears to the tune of Rs.20,250/-, has handed down sentence of three months’ simple imprisonment to the petitioner yet again resorting to Section 67 IPC.
It is argued by learned counsel for the petitioner that, while passing the impugned order in both the revision petitions, learned Magistrate has seriously erred in construing sub-section (3) of Section 125 Cr.P.C. Learned counsel further submits that under sub-section (3) of Section 125 Cr.P.C., Court is not empowered to pass any order for imprisonment beyond a period of one month. Learned counsel has also contended that learned Court below has seriously erred in invoking Section 67 IPC for handing down (3 of 7) sentence of six months and three months respectively in both the cases, inasmuch as, non-payment of maintenance allowance cannot be equated with non-payment of fine. In support of his arguments, learned counsel has placed reliance on a decision of Supreme Court in case of Sahada Khatoon and Ors. Vs. Amjad Ali and Ors. : 1999 Cri.L.J. 5060. Supreme Court, while considering rigor of sub-section(3) of Section 125 Cr.P.C. observed that the power under the aforesaid provision is circumscribed and therefore a Magistrate cannot impose imprisonment to a term which may extend to one month or until the payment, if sooner made. The Court held :-
“Sub-section(3) of Section 125 Cr.P.C. circumscribes the power of a Magistrate to impose an imprisonment to 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 of non-compliance of the order of Magistrate the wife can approach again the Magistrate for similar relief. The Apex Court further observed that by no stretch of imagination the Magistrate can be permitted to impose sentence for more than one month.”
The same view is also reiterated by this Court in the cases of (1) Suresh Vs. State of Raj. & Ors.:2005(3) R.Cr.D. 35, and (2) Sunil Kumar Jain Vs. State & Anr : 2005 W.L.C. (Raj.) UC 482.
Per contra, learned counsel for the respondents has opposed the revision petitions.
I have considered the submissions made at the Bar and perused both the impugned orders.
(4 of 7) For examining legality and propriety of the impugned orders, it would be just and appropriate to see the nature of sentence passed by a Court under Sub-section (3) of Section 125 Cr.P.C., which reads as under:
“(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 allowances 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.
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.”
A bare perusal of the above quoted sub-section(3) of Section 125 Cr.P.C. makes it abundantly clear that the sentence imposed under Section 125(3) Cr.P.C. is only a mode of enforcement of direction to pay the amount of maintenance and not as a punishment, therefore, the learned Court below in both the cases has seriously erred in invoking Section 67 IPC for handing down sentences of six months’ and three months’, respectively to the petitioner.
(5 of 7) Supreme Court in case of Smt. Kuldip Kaur vs Surinder Singh And Anr. [(1989) 1 SCC 405] has also clarified that imposition of sentence of imprisonment on defaulting party will not discharge liability to pay maintenance amount. While examining the scheme of the provisions, embodied in Chapter IX Cr.P.C., comprising Sections 125 to 128 which constitutes a complete code in itself, the Court has observed that it deals with three questions, which are:
1. adjudication as regards the liability to pay maintenance allowance to the neglected wife and child etc.;
2. the execution of the order on recovery of monthly allowance, and,
3. the mode of execution of an order for monthly allowance.
Recognizing imposition of a sentence of jail on the person liable to pay monthly allowances as one of the modes for enforcing the order of maintenance, the Court held:
“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 (6 of 7) be absolved of his liability merely because he prefers to go to jail 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. The Parliament in its wisdom has not said so commence 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 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.”
Now adverting to the impugned orders, suffice it to observe that learned Court below has misconstrued Sub-section (3) of the Section 125 Cr.P.C. and also seriously erred in invoking Section 67 IPC for imposing sentence of six months’ and three months, respectively. Therefore, in view of settled position of law laid down by Apex Court in Sahada Khatoon (supra), both the impugned orders cannot be sustained.
Resultantly, both the impugned orders are quashed and set aside and the sentence handed down to the petitioner in both the cases is reduced to one month only. As the petitioner has already (7 of 7) served one month’s sentence in both these matters and he is on bail, he need not surrender to bail bonds.
Before parting, it is made clear that upsetting of both the impugned orders shall have no ramification on the legal rights of respondent-wife to initiate appropriate proceedings under Section 128 Cr.P.C. for enforcement of the order of maintenance.