Madhya Pradesh High Court
Bhaiyalal Kushwaha vs Smt. Usha Bai Kushwaha on 29 October, 2015
URT OF MADHYA PRADESH AT JABALPUR.
M.Cr.C. No.3618/ 2013
Bhaiyalal
Vs.
Usha Bai and others
Present:
Hon'ble Shri Justice C.V. Sirpurkar
Shri Sushil Tiwari, counsel for the applicant.
Shri Sanjay Kumar Bakshi, counsel for the respondents.
_____________________________________________________
ORDER
(29 /10/2015)
1. This Miscellaneous Criminal Case is directed against the order dated 24.1.2013 passed by IInd Additional Sessions Judge, Katni in Criminal Revision No.103 of 2012, whereby order dated 6.6.2012 passed by the Court of Judicial Magistrate First Class, Katni, in MJC No. 12 of 2010 imposing jail sentence and directing issuance of arrest warrant against petitioner husband Bhaiyalal for recovery of the amount of interim maintenance, was affirmed.
2. The facts giving rise to this Miscellaneous Criminal Case may be summarized as hereunder: The Judicial Magistrate First Class had passed an order on 8.12.2009 for payment of interim maintenance allowance in the sum of Rs. 1,000/- in all to the respondents against the applicant husband Bhaiyalal. The applicant husband failed to pay the amount of interim maintenance till 6.6.2012. Therefore, an application was moved before the Learned Magistrate to send applicant to jail for enforcing recovery of the amount of interim maintenance.
3. The application was opposed by the applicant husband on the ground that he is mentally ill and is thus unable to earn his livelihood. He is dependent on his father. He had sent a notice to the respondents and had offered to keep them with him and maintained them; however, without any sufficient cause, the respondents are refusing to live with him. It was further submitted that the amount of interim maintenance may be recovered in the same manner as the fines are recovered and for default of payment of amount of interim maintenance, the respondent husband cannot be sent to jail.
4. Learned Judicial Magistrate First Class held that applicant husband had not paid any amount of interim maintenance for more than 2½ years. Though, he has taken a plea of mental illness but admittedly, he had sent a notice to the respondents offering to keep them with him and maintain them. In the circumstances, it may be presumed that he is mentally capable of judging his self interest; therefore, he cannot avoid the liability to pay interim maintenance. As such, relying upon the judgments rendered by this Court in the cases of Bhure Vs. Gomti Bai 1981 CLJ 789 and Bhogiram Vs. Bhagtwati Bai 1989 (1) MPWN 287. A sentence of imprisonment for one month was imposed upon the applicant husband and arrest warrant was directed to be issued.
5. Learned Additional Sessions Judge, affirmed the order dated 6.6.2012 passed by Learned Judicial Magistrate First Class by impugned order passed in Criminal Revision filed thereagainst.
6. The applicant husband challenged the impugned order mainly on the ground that as per Section 125 (3) of the Code of Criminal Procedure, a warrant for levying the amount due in the manner provided for levying fines is required to be issued first and a person may be sentenced to imprisonment only for the whole or any part of each month's allowance of maintenance remaining unpaid after the execution of such warrant. In the instant case, no warrant for levying the amount due has been issued in terms of Section 421 of the Code of Criminal Procedure, which provides procedure for recovery of fine amount imposed in a criminal case. It has further been stated that applicant Bhaiyalal is mentally unfit and this Miscellaneous Criminal Case has been filed on his behalf by his father. Due to his mental status, he is dependent upon his father and he is unable to pay the amount of maintenance.
7. In support of aforesaid contention, a copy of OPD slip and copy of certificate issued by Netaji Subhash Chandra Bose Medical College, Jabalpur, has been filed; wherein, it has been stated that the applicant is suffering from moderate mental retardation with deficient intelligence quotient and his disability is less than 50%. It has also been certified that he is unable to earn his livelihood; therefore, it has been prayed that the impugned order to be set aside.
8. Upon hearing learned counsel for the parties and the documents filed along with this application under Section 482 of the Code of Criminal Procedure, this Court is of the view that the application deserves to be allowed.
9. Learned Magistrate has mainly relied upon the judgement in the case Bure (supra); wherein, it has been held that an order under Sec. 125(3) for imprisonment of husband for his negligence to pay maintenance can be passed without at first issuing the warrant for levying the amount due. The normal rule is, at first, to try to seek enforcement of the order by issuing the distress warrant in the manner provided in the Code for levying fines, but, this rule is not mandatory, that is, to be necessarily followed in each and every case without considering the attending circumstances of the particular case. Where the husband avoided appearance, did not pay anything in spite of passing of the order, resisted maintenance during trial by leveling flagrant charges of immorality on part of the wife refused point blank to pay any maintenance it was held that ordering his imprisonment without first issuing distress warrant was proper. It was so when the husband did not possess any immovable property but earned his earning by making biris and thus no useful purpose would have been served by issuing distress warrant.
10. On the contrary, in the case of Javed Mirza v. Ghausia Anees, 2002(1) MPWN 74, a co-ordinate bench of this Court has held that the Court should first issue warrant u/s 421 to recover the amount as fine. No warrant for imprisonment can be issued directly for recovery of maintenance amount.
11. In the opinion of this Court it is not necessary to enter into legal question as to whether or not sentence of imprisonment can be imposed without first issuing warrant of attachment of property as envisaged under Section 421 of the Code of Criminal Procedure. In the instant case because even if we assume for the sake of arguments that sentence of ipisonment for recovery of amount of maintenance can be issued straightaway in appropriate cases, this is not a fit case where such a course should be adopted.
12. It is true that order of interim maintenance cannot be canceled in execution proceedings on the ground of mental illness of the husband. However, in view of the documents filed by the applicant husband it is clear that he is suffering from some form of mental ailment; therefore, it would not be appropriate to send him to jail for recovery of amount without exhausting the remedies as provided under Section 421 of the Code of Criminal Procedure.
13. Consequently, the impugned order deserves to be and is hereby set aside. It is made clear that no final opinion is being expressed regarding the alleged mental incapacity of the applicant husband to earn his livelihood and maintain his wife and children and this question is left open.
14. Learned trial Court shall be free proceed with the recovery of the amount of interim maintenance by resorting to the procedure prescribed under Section 125 (3) and 421 of the Code of Criminal Procedure.
15. The Miscellaneous Criminal Case accordingly stands disposed of.
(C V SIRPURKAR) JUDGE