Madras High Court
Muthuvel vs Nalini on 8 September, 2015
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.09.2015
CORAM
THE HONOURABLE MRS.JUSTICE S.VIMALA
Crl.R.C.(MD)No.123 of 2012
and Crl.R.C.(MD)No.124 of 2012
Muthuvel ... Petitioner in both Crl.RCs.
-vs-
Nalini ... Respondent in both Crl.RCs.
Petitions filed under Section 397 r/w 401 of the Criminal Procedure
Code, against the orders in Crl.M.P.Nos.40 of 2010 and 94 of 2012,
respectively, in M.C.No.50 of 2008 dated 14.02.2012 on the file of the Chief
Judicial Magistrate Court, Ramanathapuram.
!For petitioner : Mr.C.Godwin
^For respondent : No appearance
:COMMON ORDER
The revision petitioner was directed to undergo imprisonment for one month for the arrears of each one month or until payment of arrears of maintenance, by the order dated 14.02.2012 in CMP No.40 of 2010 in M.C.No.50 of 2008 on the file of Chief Judicial Magistrate, Ramanathapuram. Challenging the same, the revision petition is filed in Crl.RC.(MD)No.123 of 2012.
2.The revision petitioner was directed to undergo imprisonment for one month for the arrears of each one month or until payment of arrears of maintenance, by the order dated 14.02.2011 in CMP No.94 of 2012 in M.C.No.50 of 2008 on the file of Chief Judicial Magistrate, Ramanathapuram. Challenging the same, the revision petition is filed in Crl.RC.(MD)No.124 of 2012.
3.These revision petitions, challenging the enforcement of the order of maintenance, is pending from the year 2012, for want of service of notice on the part of the respondent.
3.1. The respondent is not served for the past 3 years. The grounds of revision reveal that the issues raised are purely pertaining to questions of law and therefore, the non-appearance of the respondent will not cause any prejudice to the respondent. Therefore, orders are passed in these revision petitions, only by hearing the learned counsel for the petitioner.
4.The respondent herein, viz.the wife, filed the petition in M.C.No.50 of 2008 seeking maintenance against the revision petitioner. The revision petitioner was directed to pay a sum of Rs.2,000/- per month as maintenance from the date of petition.
5.As the amount of maintenance ordered was not paid, the wife, as petitioner, filed application in CMP 40 of 2010 claiming arrears of maintenance payable from 10.12.2008 to 10.11.2009, totalling Rs.22,000/-
6.Even though the respondent appeared before the learned Magistrate, he did not pay the amount. Therefore, after granting sufficient time, the learned Magistrate passed the impugned order.
7.In respect of non-payment of arrears of maintenance for the period from 11.11.2009 to 11.01.2012, totalling Rs.52,000/- (Rs.2,000/- x 26 months), the next application was filed in CMP No.94 of 2012 under Section 128 Cr.P.C. In this application also, as the respondent was not ready to pay the arrears of maintenance, imprisonment has been ordered. Challenging the same, revision petition in Crl.RC.(MD)No.124 of 2012 has been filed.
8.The main grounds of revision are that (a)the Court has no power to order detention for more than a month for realising the arrears of maintenance and (b)The jurisdiction to pass an order of arrest is under Section 125(3) and not under Section 128 of Cr.P.C.
9.Whether these grounds are sustainable is the simple issue to be decided in these revision petitions.
10.Two types of enforcement (of the order of maintenance) can be resorted to, while enforcing the order of maintenance. The party in possession of the order for maintenance can ask for issuance of a warrant for levying the amount due in the manner provided for levy of fine, ie., as per the procedure contemplated under Section 421 Cr.P.C.. In other words, warrant may be sought for, for the attachment and sale of movable property. Equally, warrant may be directed to be issued to the Collector, authorising him to realise the amount according to the civil process for the attachment and sale of movable or immovable properties. The second remedy is to sentence the husband (or father) for the default in payment of whole or in part of each month allowance, to imprisonment for a term, which may extend to 1 month or until payment is made.
11.If there are arrears for more than 1 month, then the imprisonment exceeding for a period of 1 month can be imposed (Manoj Markas Thorat v. State of Maharashtra, 2010(1) Crimes 749(752) Bom.)
12.Section 128 Cr.PC provides for enforcement of order of maintenance, which reads as under:
"A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or as the case may be expenses, due."
13.Enforcement of the order of maintenance is provided under Section 128 of Cr.P.C., giving option to the wife to seek enforcement either in a place where the order was passed or in a place the respondent was residing. The provision for passing an order of imprisonment is provided only under Section 125(3) Cr.P.C. Provision of Section 128 Cr.P.C., has been quoted, because the application was towards enforcement of order of maintenance. The mode of enforcement is provided under Section 125(3) Cr.P.C. The application under Section 128 Cr.P.C., is sufficient to grant the remedy under Section 125(3) Cr.P.C. Even assuming that quoting Section 128 Cr.P.C. is wrong, it is for the Court to apply the correct provision of law and to grant the appropriate remedy. Quoting wrong provision of law is not a ground to reject the remedy especially when the provisions aim at grant of social justice. Therefore the contention that the petition ought to have been dismissed, as it is not filed under Section 125(3) Cr.P.C., cannot be accepted.
14.So far as the second contention is concerned, for the entire arrears of maintenance for a period of one year, only 1 month imprisonment can be ordered and not more than that. Yet another contention is that the claim beyond the period of 1 year in the second application is barred by limitation. To appreciate the question as to whether the bar of limitation under the proviso to Section 125(3) is attracted in this case, a reference to Section 125(3) is necessary:
"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 (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:"
15.This provision came to be interpreted by the Hon'ble Supreme Court in many cases out of which it is enough to refer to the following two decisions. After referring to the provisions of Section 125(3) and Section 128 of Cr.P.C., the Hon'ble Supreme Court in the case of Shantha alias Ushadevi and Another v. B.G.Shivananjappa [(2005) 4 SCC 468] held that the liability to pay maintenance is a continued liability and the provision has to be construed towards the welfare and benefit of the wife and daughter. The relevant observation reads as under:
"It must be borne in mind that Section 125 Cr. P.C. 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 Section 125(1) is a continuing liability."
16.Relying upon this decision, the Hon'ble Supreme Court in the case of Poongodi and Another vs. Thangavel, reported in (2013) 10 SCC 618, held that the first proviso to Section 125(3) did not extinguish or limit the entitlement of the wife and children to the maintenance granted by the Trial Court. Relevant observation reads as under:
"6.In another decision of this Court in Shantha v. B.G.Shivananjappa [(2005) 4 SCC 468] 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 v. Amjad Ali [(1999) 5 SCC 672]. 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.
17.In the light of the legal position indicated above, the contention of the learned counsel for the revision petitioner that the claim is barred by limitation is not acceptable. Hence, these revision petitions are devoid of merits and both the revision petitions are dismissed.
To The Chief Judicial Magistrate, Ramanathapuram.
.