Karnataka High Court
Venkatesh M vs Smt Yellamma on 18 September, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18th DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
R.P.F.C. NO.37 OF 2015
BETWEEN:
VENKATESH M.
S/O THIMMAPPA
AGED 41 YEARS
R/AT KOKKARAGOLLA VILLAGE
DAVANAGERE TALUK & DISTRICT
PIN-577 589.
... PETITIONER
(BY SRI.Y.S.SHIVAPRASAD, ADVOCATE)
AND:
1. SMT.YELLAMMA
W/O VENKATESH M.
AGED ABOUT 39 YEARS
R/AT C/O.KORAMMA THIMMPPA
KOKKARAGOLLA VILLAGE
DAVANAGERE TALUK & DISTRICT
PIN-577 589.
2. THE DEPUTY COMMISSIONER
DAVANAGERE DISTRICT
DAVANAGERE.
... RESPONDENTS
(BY SRI.B.S.MURALI, ADVOCATE FOR R1,
R2 IS DELETED - V/O DATED 05.03.2015)
2
THIS R.P.F.C. IS FILED UNDER SECTION 19(4) OF
THE FAMILY COURT ACT TO SET ASIDE THE ORDER
PASSED IN CRL.MISC.NO.84/2013 DATED 06.12.2014 BY
THE FAMILY COURT, DAVANAGERE AND ETC.,
THIS R.P.F.C. HAVING BEEN HEARD AND RESERVED
FOR ADMISSION, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Though the revision petition is listed for admission, with the consent of learned counsels, it is heard finally.
2. The order dated 06.12.2014 passed by the Family Court, Davanagere, is called in question in this revision petition.
3. The learned Judge of the Family Court has passed the order to realize the arrears of maintenance amount in terms of Section 431 of Cr.P.C. by following the procedure contemplated under Section 421 of Cr.P.C on an application filed by respondent No.1 - wife under section 128 of Code of Criminal Procedure, 1973 (Cr.P.C.) and consequently, directed the Office to issue warrant 3 along with schedule properties and RTCs for recovery of fine in Form No.44 appended to II schedule of Cr.P.C. to the Deputy Commissioner, Davanagere and to deposit the amount recovered by sale of attached property to the Court.
It is this order which is called in question on various grounds as set out in the revision petition.
4. Sri.Y.S.Shivaprasad, learned counsel for the petitioner has vehemently contended that the order passed by the Family Court is hit by Section 125 (3) of Cr.P.C. He submitted that respondent No.1 - wife had filed a maintenance petition in Crl.Misc.No.96/2002 and O.S.No.40/2002, and a common judgment was delivered on 29.08.2003 and respondent No.1 opted to proceed with Crl.Misc.No.96/2002 and did not take any steps for recovery of arrears of maintenance till 22.02.2013.
A further submission was made that the Family Court ought to have dismissed the application as barred by limitation.
4
Learned counsel contended that on account of conviction and order of sentence, petitioner has been removed from the service. He has not been given any monetary benefits. Therefore, he submitted that petitioner is currently un-employed and do not have any avocation.
Next, he contended that none of the properties are standing in the name of petitioner, hence, the order of attachment or sale of properties is bad in law.
Lastly, learned counsel submitted that the order of the Family Court is bad in law and liable to be set aside. Accordingly, he prayed that the revision petition may be allowed.
5. Sri.B.S.Murali, learned counsel for respondent No.1 submitted that petitioner - husband has contracted second marriage with one - Shobha in the year 1999. Therefore, respondent No.1 - wife filed a complaint under Sections 498A, 323, 504, 506, 494 r/w. Section 34 of IPC and also under Sections 3 and 4 of the Dowry Prohibition Act, 1961. Petitioner was convicted and an order of 5 sentence was passed in C.C.No.40/2002. The order of sentence was confirmed by the Fast Track Court, Davanagere, as well as by this Court.
Next, he submitted that petitioner - husband has wilfully neglected and refused to maintain his wife. Hence, respondent No.1 - wife was constrained to initiate proceedings under Section 125 of Cr.P.C. seeking maintenance. She had also filed original suit. Both the cases were clubbed together and a common order was passed and the Court directed petitioner - husband to pay monthly maintenance of Rs.2,000/- per month and charge was ordered to be created over petitioner's 1/4th share on the petition schedule properties.
Learned counsel for respondent No.1 - wife vehemently contended that respondent No.1 is the legally wife of petitioner and the husband is duty bound to maintain his wife. He submitted that, despite the order of maintenance and charge, petitioner has not paid the maintenance amount. Therefore, respondent No.1 - wife 6 was constrained to initiate action under Section 128 of Cr.P.C. seeking recovery of arrears of maintenance of Rs.2,50,000/- by sale of Item No.1 of the petition schedule property. A further submission was made that the Family Court is justified in passing the order. Hence, he submitted that revision petition is devoid of merits and does not call for any interference.
Insofar as the contention with regard to limitation, learned counsel opposed the same and according to him, the limitation provided under Section 125(3) of Cr.P.C. is not applicable to the facts of the present case. The petition is filed under Section 128 of Cr.P.C. Accordingly, he prayed that the revision petition may be dismissed.
6. I have carefully considered the rival submissions made on either side and perused the material on record.
7. The present revision petition is filed challenging the order passed by the Family Court pursuant 7 to a petition filed by respondent No.1 under Section 128 of Cr.P.C.
Indeed, it is a matter relating to enforcement of order of maintenance under Section 128 of Cr.P.C.
8. Let me consider what facts I have here. The marriage of petitioner and respondent No.1 was solemnized in the year 1995. Due to some differences of opinion and misunderstandings between the parties, respondent No.1 had initiated criminal action against petitioner and his family members and that petitioner was convicted and an order of sentence was passed on 30.06.2004. The same was assailed by petitioner right up to this Court. The order of sentence was confirmed by this Court in the year 2009 and petitioner has served the sentence.
9. Contending that, her husband had willfully neglected and refused to maintain her, respondent No.1 initiated proceedings under section 125 of Cr.P.C in Crl.Misc.No.96/2002 seeking order of maintenance. It is 8 pertinent to note that she also initiated civil action in O.S.No.40/2002 for grant of maintenance and sought for creation of charge over the suit schedule properties which were mentioned in the schedule of the petition. Both the cases were clubbed together and learned Judge of the Family Court disposed of the matters on 29.08.2003.
10. The decree in O.S.No.40/2002 and Crl.Misc.No.96/2002 reads as under:
"It is ordered and decreed that the suit of the plaintiff be and the same is hereby allowed with cost.
It is further ordered and decreed that the defendant No.1 shall pay maintenance to the plaintiff at the rate of Rs.2,000/- per month from the date of suit (28.08.2002).
It is further ordered and decreed that the charge is ordered to be created in respect of schedule mentioned properties to an extent of 1/4th share of defendant No.1.9
It is further ordered and decreed that the defendant No.1 is liable to pay maintenance to the plaintiff at the rate of Rs.2,000/- per month from the date of suit i.e., 28.08.2002. 60 days time is granted to him for payment of arrears of maintenance from the date of suit i.e., 28.08.2002 till date of judgement i.e., 29.08.2003. Defendants No.1 and 2 are liable to pay cost of Rs.2,680/- to the plaintiff jointly and severally.
It is further ordered and decreed that the plaintiff may take appropriate steps for creation of charge over the schedule mentioned properties by moving the competent authorities.
It is further ordered and decreed that the plaintiff/petitioner-Yallamma may execute either the decree or the award passed in Crl.Mis.96/2002 in respect of maintenance including arrears of maintenance that falls due from 28.08.2002 and onwards there from".
11. The petitioner challenged the order passed in O.S.No.40/2002 before this Court in MFA No.3036/2004. This Court vide order dated 10 26.05.2005 dismissed the appeal. That being so, after the conclusion of original proceedings on the criminal side, respondent No.1 filed petition under Section 128 of Cr.P.C. seeking arrears of maintenance and sought for an order for sale of the petition schedule properties particularly, Item No.1 of the petition schedule property for recovery of arrears of maintenance of Rs.2,50,000/- plus cost of the petition being Rs.5000/- from the petitioner.
12. It is pertinent to note that petitioner - husband filed detailed objections to the said petition. He also raised objection regarding maintainability of the petition as barred by limitation. In the said objection, petitioner - husband also contended that, he has no source of income to pay a single pie maintenance to his wife and stated that the respondent is at liberty to recover the arrears of maintenance in accordance with law, subject to limitation for recovery.
The Family Court vide order dated 28.02.2014 rejected the objections filed by petitioner - husband and 11 consequently, directed respondent No.1 - wife to recover arrears of maintenance under the modes provided under law. It would be relevant to note that petitioner - husband did not challenge the said order. The same has attained finality. Ultimately, learned Judge of the Family Court proceeded to hear the matter on merits and passed the order on 06.12.2014.
Learned Judge of the Family Court has passed the order to realize the arrears of maintenance amount in terms of Section 431 of Cr.P.C. by following the procedure under Section 421 of Cr.P.C. The Court also directed the office to issue necessary warrant along with schedule properties and RTCs for recovery of fine in Form No.44 appended to II Schedule of Cr.P.C. to the Deputy Commissioner, Davanagere, and to deposit the amount recovered by sale of attached property to the Court.
As already noted above, it is this order which is challenged in the present revision petition. 12
It has been contended that petition is barred by limitation. The preliminary point is, in effect, a plea as to limitation.
Bearing that in mind, let me state that a proceeding under Section 125 Cr.P.C. is quasi civil and quasi criminal. It is civil in nature, since, it decides the civil rights of the parties to claim maintenance. When the order is not obeyed by the person against whom the same has been made, then the Court is empowered to impose a punishment of imprisonment for every breach of the order for a term which may extend to one month or until payment is sooner is made. To that extent, it is criminal in nature. To put it comprehensively, I have to state that the proceeding is quasi civil and quasi criminal in nature.
13. Where an order is passed directing to pay maintenance, the party in whose favour such an order has been passed has got two options. The first one is the party can choose to approach the Court under Section 125(3) 13 Cr.P.C. requesting the Court to punish the defaulter by imposing appropriate imprisonment; the second one is to approach the Court under Section 128 of Cr.P.C.
A comparison of Sections 125(3) and 128 of Cr.P.C. would keep things beyond any doubt that insofar as the proceeding under Section 125(3) is concerned, the statute has prescribed a period of limitation of one year, whereas in respect of a proceeding under Section 128 of Cr.P.C., there is no limitation provided at all. It follows, therefore, by the terms of the statute, that, for initiating a proceeding for enforcing an order by invoking Section 128 of Cr.P.C., I find no provision providing for limitation as it is provided in respect of proceedings under Section 125(3) of Cr.P.C.
14. It is pertinent to note that while disposing of the matter on 29.8.2003, learned Judge of the Family Court had reserved the liberty to execute either the order passed in the maintenance petition or to execute the decree passed in the civil suit. In the case on hand, 14 respondent No.1, filed petition under Section 128 of Cr.P.C. It is needless to observe that Section 128 gives an alternative remedy by enabling an application for execution to be made direct to the Magistrate within whose jurisdiction the person against whom the order is passed may be as well as to the Magistrate who passed the original order, or his successor. A Magistrate to whom an application has been made to enforce an order of maintenance should not take into consideration anything further than the identity of the parties and non-payment of the allowance.
It has been vehemently contended by learned counsel for petitioner that on account of conviction and order of sentence, petitioner has been removed from the service without giving any monetary benefits. The petitioner is currently un-employed and do not have any avocation.
I am quite unable to accept the said contention for the simple reason that if a person is healthy and able 15 bodied, he must be held to have means to support his wife.
Learned counsel also urged that none of the properties are standing in the name of petitioner and therefore, the order of the Family Court is against to law and principles of natural justice.
It is perhaps well to observe that if the right of maintenance is imperilled or jeopardised by the conduct and dealings of the husband with respect to properties, the Court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children. Even in the instant case also, the Court has created a charge to an extent of petitioner's 1/4th share in the suit schedule properties.
15. As early as in the year 1942, the Bombay High Court in RADHABAI GOPAL JOSHI VS GOPAL DHONDO JOSHI AND ANOTHER reported in AIR 1944 BOMBAY 50, observed as follows: -
16
"It is well recognised doctrine that the maintenance of the wife is a legal imperative duty of the husband independently of his possession of any property."
I would observe that Section 125 of Cr.P.C. is the measure of social justice and is specially enacted to protect women and children and falls within the Constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution.
It will not be out of context to observe further that under Hindu Law, the maintenance of a wife by her husband is, of course, a matter of personal obligation which attaches from the moment of marriage. From the date of marriage her home is necessarily in her husband's home. He is bound to maintain her. The doctrine of maintenance of a wife can be traced to the smritis, and the principal Hindu commentaries upon them. These texts enjoin a mandatory duty upon the husband to maintain his wife. It imposes a personal obligation on him enforceable by the sovereign or state.
17
16. I, see no reason to interfere with learned Judge's order.
17. Accordingly, I pass the following: -
ORDER The revision petition is dismissed.
Sd/-
JUDGE VMB