Calcutta High Court - Port Blair
Kalaiselvi vs The State And Another on 20 March, 2026
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
[CIRCUIT BENCH AT PORT BLAIR]
PRESENT : THE HON'BLE JUSTICE TIRTHANKAR GHOSH
CRR/18/2026
With
CRR/17/2026
KALAISELVI ... PETITIONER
VS.
THE STATE AND ANOTHER ... RESPONDENTS
For the petitioner : Mr. Siddhartha Singha
For the respondent No.2 : Mr. Gopala Binnu Kumar
Ms. Vinita Devi
Heard on : March 12, 2026
Judgment delivered on : March 20, 2026
TIRTHANKAR GHOSH, J.
1. Both the revisional applications being CRR/18/2026 and CRR/17/2026 have been preferred against the separate orders dated 20th January, 2026 passed in Misc. Execution Case No. 88 of 2024 and Misc. Execution Case No. 83 of 2024 as both the execution case arise out of Misc. Case No. 05 of 1998, wherein by an order dated 21 st July, 1998, the learned Chief Judicial Magistrate, South Andaman District was pleased to direct as follows:-
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"That the application under section 125 of the criminal Procedure Code, 1973 is allowed on contest without cost. The opposite party Shri. V. Shanmugam is hereby directed to pay Rs. 1500/- (Rupees One thousand five hundred only per month to the Petitioner Smti. R. Kalaiselvi and minor children by the 05th day of every month as maintenance. This order shall take effect from 19.01. 1998. The opposite party is further directed to pay the arrears maintenance in respect of petitioner and minor children of Rs 500/- each per month along with the current maintenance."
2. The aforesaid two cases relate to execution case filed in connection with the said proceeding and were dismissed by the learned Judge, Family Court, Andaman and Nicobar Islands when they were taken up together for disposal.
CRR/18/2026
3. The revisional application has been preferred against the order dated 20th January, 2026 in connection with Misc. Execution Case No. 88 of 2024 wherein the present petitioner filed an application for enforcement of order of maintenance under section 147 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS) which is akin to section 128 of the Code of Criminal Procedure 1973 (for short, Cr.PC). The subject matter of Misc Execution Case No. 88 of 2024 was preferred for recovery of maintenance of arrear for the period from 01st January, 2019 to 31st December, 2019.
CRR/17/2026
4. The revisional application has been preferred against the order dated 20th January, 2026 in connection with Misc Execution Case No. 83 of 2024, wherein the present petitioner filed an application under section 147 of the BNSS which is akin to section 128 of Cr.PC being Misc. 3 Execution Case No. 83 of 2024, for non-payment of maintenance amount for the period from 1st January, 2020 to 31st December, 2020.
5. Learned advocate appearing for the petitioner challenged the impugned order on the ground that the same suffers from inherent non appreciation on the points of law, as the learned Judge, Family Court dismissed the execution case on the ground that the same was barred by limitation. Learned advocate relied upon the judgment of Poongodi and another vs. Thangavel reported in (2013) 10 SCC 618 and submitted that the Hon'ble Apex Court has held that non-payment of maintenance is a continuing liability and therefore the first proviso of section 125(3) of the Cr.PC/section 144(3) of the BNSS did not extinguish the entitlement of the petitioner to maintenance granted by the trial Court.
6. Learned advocate also relied upon Shantha @ Ushadevi and another vs. B.G. Shivananjappa reported at (2005) 4 SCC 468 and submitted that in similar set of facts the Hon'ble Supreme Court was pleased to hold that the provision of section 125 of the Cr.PC is a beneficial legislation and as such, directed for recovery of arrears.
7. Learned advocate for the petitioner submitted that the order of learned trial Court suffered from perversity, as the Court went onto interpret the judgment of the Hon'ble Supreme Court and Hon'ble Calcutta High Court in a manner totally ignoring the purposes for 4 incorporating the provision of Chapter IX of the Cr.PC or Chapter X of the BNSS.
8. On the other hand learned advocate appearing for the husband/opposite party No. 2 relied upon the judgment delivered by High Court, Calcutta in CRR/56/2024 (Smti. Sabreena Prem vs. The State and another) wherein the Coordinate Bench was pleased to consider the decision of Poongodi and another (supra) and thereafter held that there was no illegality or error in the order passed by the learned Family Court.
9. Learned advocate for the opposite party No. 2 also relied upon the judgment delivered by a Coordinate Bench in CRR/692/2018 (Rina Sarkar vs. Kajal Sarkar) wherein after considering the several judgments of the Hon'ble Supreme Court including Poongodi and another (supra) as also Shantha @ Ushadevi and another (supra) it was held that the code of criminal procedure do not provide relief to the 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 entitlement for receipt of arrears accrued.
10. Learned advocate for the opposite party No. 2 thereafter relied upon the judgment of Sushil Kamalnayan Bharuka and others vs. State of Maharashtra and others, 2026 INSC 168 (SLP Civil Nos. 21419-21420 of 2023) and thereafter referred to paragraph nos. 14, 16 and 22 for emphasising that if there is a difference of opinion the Court 5 should adhere to the remedy granted in the earlier application. The following paragraphs are quoted below:-
"14. However, insofar as the appellants/writ petitioners who approached the Aurangabad Bench a similar relief was not granted to them. It was submitted that although the respondent-Pratik Group had also assailed the auction process and both the writ petitions filed by the appellants and respondent-Pratik Group were heard together, when once the Principal Bench had set aside the cancellation of the auction process that order ought to have been followed by the Aurangabad Bench. Instead, the Aurangabad Bench set aside the entire auction process and this, consequently, has resulted in contradictory orders by two different benches of the Bombay High Court. He therefore submitted that having regard to the fact that the connected SLP Diary No. 45650/2024 having been dismissed by this Court on the ground of delay and having regard to the fact that there cannot be contradictory orders by the very same High Court in respect of the very same issue raised by different parties before different Benches, the impugned order passed by the Aurangabad Bench may be set aside and the relief(s) similar to what has been granted by the Principal Bench may be granted to the appellants herein.
16. We have considered the arguments advanced at the bar in light of the two contradictory judgments passed by the two Benches of the Bombay High Court.
22. The question, as to, whether, the cancellation of the e-auction process was justified or not has also already been adjudicated upon by the Principal Bench of the Bombay High Court and it has set aside the cancellation of the auction. The said order has attained finality inasmuch as respondent-MIDC has not assailed the same and has accepted the same. In the circumstances, we do not think that there can be two contradictory orders of different benches of the High Court on the very same issue."
11. I have taken into account the submissions of the respective parties as well as the impugned order dated 20th January, 2026 and on assessment of the same, I am of the view that the following judgments require consideration before arriving at any finding.
12. In Kuldip Kaur vs. Surinder Singh and another reported at (1989) 1 SCC 405, the Hon'ble Supreme Court at paragraph Nos. 4, 5 and 6 was pleased to observed as follows:-
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"4. We fail to comprehend how such an important question arising in the context of the petition preferred by a helpless woman could have been summarily rejected by the High Court by a non-speaking order. To say the least of it, it betrays total lack of sensitivity on the part of the High Court to the plight of a helpless woman. Were it not so, the High Court would have at least passed a speaking order unfolding the rational process which made the High Court feel helpless in helping a helpless woman and a helpless child. The legal position may now be examined. Section 125 of the Code of Criminal Procedure (hereinafter referred to as "the Code") provides for an order for maintenance to wives, children and parents. A Magistrate upon being satisfied about the proof of negligence or refusal on the part of the person from whom monthly allowance for the maintenance of the wife, child, father or mother as the case may be, is due, upon being satisfied about the fact that the person has sufficient means, may pass an order for monthly allowance under sub-sections (1) and (2) of Section 125 of the Code. Section 128 of the Code provides for enforcement of such an order of maintenance passed by a competent Magistrate. The section reads as under:
"128. Enforcement of order of maintenance.--A copy of the order of maintenance 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 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 due."
Sub-section (3) to Section 125 deals with the problem arising in the context of a person against whom order for maintenance allowance has been made failing without sufficient cause to comply with the order. It deserves to be reproduced to the extent material for the present purposes:
"125. (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 allowance 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:"
5. The scheme of the provisions embodied in Chapter IX of the Code comprising Sections 125 to 128 which constitutes a complete code in itself requires to be comprehended. It deals with three questions viz.: (1) adjudication as regards the liability to pay monthly 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. Now, one of the modes for enforcing the order of maintenance allowance with a view to effect recovery thereof is to impose a sentence of jail on the person liable to pay the monthly allowances.
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 7 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. The Parliament in its wisdom has not said 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."
13. The aforesaid judgment makes it clear that the liability in a case under section 125 can only be satisfied by making actual payment of arrears. It has been held in the aforesaid judgment, that even sending the person to jail do not wipe the liability when he has refused to discharge the payment of arrears.
14. In Shantha @ Ushadevi and another (supra), it has been held that the provision of section 125 Cr.PC is a measure of social legislation and it has to be construed liberally for the welfare of the wife and children. The relevant paragraph no. 8 of the said judgment reads as follows :-
"8. We are, therefore, of the view that in the peculiar circumstances of the case, the bar under Section 125(3) cannot be applied and the High Court has erred in reversing the order of the Sessions Judge. It must be borne in mind that Section 125 CrPC 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 8 liability to pay the maintenance as per the order passed under Section 125(1) is a continuing liability."
15. In Poongodi and another (supra) it has been observed in paragraph nos. 4 and 7 as follows:-
"4. A reading of the order dated 21-4-2004 [Thangavel v. Poongodi, Criminal Revision No. 620 of 2003, order dated 21-4-2004 (Mad)] 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 affects 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.
7. The ratio of the decisions in the aforesaid cases squarely applies to the present case. The application dated 5-2-2002 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.
16. A conjoint reading of the aforesaid three judgments of the Hon'ble Supreme Court would lead to the following conclusion:-
(i) That Chapter IX of the Cr.PC was incorporated in the Code as a measure of social legislation for the benefit of wife, children and other dependents.
(ii) The purpose was to ensure that the maintenance amount awarded in proper cases do suffice the needs of such dependents.9
(iii) The liability to pay maintenance under Chapter IX of Cr.PC is a continuing liability and the same cannot be waived.
(iv) Even sending a defaulter to jail do not waive the right of the claimant to pursue the remedy for arrears of maintenance.
17. The law of limitation do not strictly apply to the provision of Chapter IX of Cr.PC and it has been categorical spelt out by the Hon'ble Apex Court that there should be a liberal interpretation of such social legislation.
18. The decisions of the coordinate Benches which relied upon Poongodi and another (supra) to arrive at a different finding did not take into account the earlier judgments of the Hon'ble Supreme Court in its totality, particularly the judgments cited above i.e. Kuldip Kaur (supra) and Shantha @ Ushadevi and another (supra) in detail. As such the contention of the learned advocate for the opposite party no. 2/husband to the effect that if there is difference of opinion the same should be referred do not apply to the present case as the aforesaid judgments are silent on the analysis of the ratio decided in the earlier two cases of the Hon'ble Supreme Court i.e. Kuldip Kaur (supra) and Shantha @ Ushadevi and another (supra).
19. Having regard to the observations made above, I am of the view that the separate orders dated 20th January, 2026 passed in Misc. Execution Case No. 88 of 2024 and Misc Execution Case No. 83 of 2024 10 by the learned Judge, Family Court, Andaman and Nicobar Islands is not sustainable in law, the same as such is set aside.
20. Accordingly the revisional applications being CRR/18/2026 and CRR/17/2026 are allowed.
21. Pending application, if any, is consequently disposed of.
22. As the revisional application has been purely dealt on question of law, the same will not prevent the opposite parties from adducing factual circumstances on merits of the case before the learned Judge, Family Court, Andaman and Nicobar Islands.
23. All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court.
24. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.
( Tirthankar Ghosh, J. )