Madhya Pradesh High Court
Rajesh Dubey vs Smt. Rachna Tiwari on 21 March, 2018
1
HIGH COURT OF MADHYA PRADESH
CRR 1258/2018
Rajesh Dubey vs. Smt. Rachna Tiwari and Anr.
Gwalior, dtd. 21/03/2018
Shri R.K. Soni, Counsel for the applicant.
Heard on the question of admission.
This Criminal Revision under Section 397/401 of Cr.P.C. has
been filed against the orders dated 19-2-2018 and 21-2-2018
passed by Principal Judge, Family Court, Vidisha, in case
no.244/2014 by which the applicant has been sent to jail for a
period of one year because of non-payment of Rs.1,50,000/-.
It is submitted by the Counsel for the applicant, that the
respondents are the wife and daughter of the applicant. They
had filed an application under Section 125 of Cr.P.C. for grant of maintenance. The Trial Court by order dated 17-12-2009, directed the applicant to pay interim maintenance @ Rs.1500/- per month. The application filed under Section 125 of Cr.P.C. was allowed and by order dated 16-10-2012, the applicant was directed to pay Rs.1500/- to the respondent no.1 and Rs.1000/- to the respondent no.2. However, it is fairly conceded by the Counsel for the applicant, that only an amount of Rs.1,500/- was paid by him from 17-12-2009 and the remaining amount was not paid.
Accordingly, an application was filed by the respondents under Section 125(3) of Cr.P.C. for recovery of maintenance amount. The notices were issued. However, applicant did not appear and ultimately, warrants were issued under Section 166 of Cr.P.C. and accordingly, the applicant was arrested and was produced before the Trial Court on 19-2-2018. The Trial Court on the said date, sent the applicant to jail, as he failed to deposit the arrears of maintenance amount, mentioning therein 2 that an amount of Rs.1,50,000/- is outstanding against the applicant, and since, he can be sent to jail for a maximum period of 12 months, therefore, it was directed that the applicant be kept in jail for a period of one year or till the outstanding amount is deposited, whichever is earlier. Thereafter, the applicant filed an application seeking his release from jail as the applicant was ready and willing to deposit an amount of Rs.20,000/- which has been rejected by the Trial Court by order dated 21-2-2018.
Challenging the orders dated 19-2-2018 and 21-2-2018, passed by the Trial Court, it is submitted by the Counsel for the applicant that an application was filed by the respondents under Section 125(3) of Cr.P.C. for recovery of Rs.1,14,500/- and according to the respondents themselves, the total outstanding amount was Rs.1,14,500/- therefore, the Trial Court has erroneously came to a conclusion that an amount of Rs.1,50,000/- is outstanding. It is further submitted that the applicant can be sent to jail for a maximum term of one month and not for a period of one year, as done by the Court below. It is further submitted that arrears of maintenance amount, beyond the period of one year, cannot be claimed.
Heard the learned Counsel for the applicant.
So far as the question of quantum of outstanding arrears of maintenance is concerned, it is clear that such an objection has never been taken by the applicant, before the Trial Court. The applicant has never disputed the fact that apart from Rs.1,14,500/-, no other amount is outstanding. On the contrary, the record shows that the respondents had filed an application under Section 125(3) of Cr.P.C. on 3-1-2015 and on 3 the said date, the total outstanding amount against the applicant was Rs.1,14,500/-, whereas the order under challenge has been passed on 19-2-2018 i.e., after 3 years of the said application. Thus, it appears that the amount of Rs.1,50,000/- must be the arrears of maintenance amount, having accrued after the filing of the application on 3-1-2015. The applicant has not filed the copy of the application, on the basis of which the present proceedings have been initiated against the applicant. Therefore, at this stage, it cannot be ascertained by this Court that what amount is outstanding against the applicant, and since, the applicant did not raise any objection with regard to the quantum of the arrears of maintenance amount before the Trial Court, therefore, he cannot be permitted to raise such an objection before this Court, for the first time.
It is next contended by the Counsel for the applicant, that a person cannot be sent to jail for a period 12 months. The submission made by the Counsel for the applicant is misconceived and hence liable to be rejected.
Section 125(3) of Cr.P.C. 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 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 4 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.'' The Supreme Court in the case of Poongodi Vs. Thagavel reported in (2013) 10 SCC 618 has held as under :-
''5. The decision of this Court in Kuldip Kaur v. Surinder Singh [(1989) 1 SCC 405] may be usefully recalled wherein this Court has held the provision of sentencing under Section 125(3) to be a "mode of enforcement" as distinguished from the "mode of satisfaction" of the liability which can only be by means of actual payment. Para 6 of the Report to the above effect, namely, that the mode of enforcement i.e. sentencing to custody does not extinguish the liability may be extracted below: (SCC p. 409, para 6) "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 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 5 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. Parliament in its wisdom has not said so. 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. That is the reason why we set aside the order under appeal and passed an order in the following terms ...."
(emphasis in original)
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 6 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 [(1999) 5 SCC 672 ].'' Thus, it is clear that the provision of Section 125(3) of Cr.P.C. is a "mode of enforcement" and not a "mode of satisfaction". The order passed under Section 125 of Cr.P.C., stands satisfied, only when the maintenance amount is paid. Thus, by virtue of Section 125(3) of Cr.P.C. the arrears of maintenance does not become barred by time. So far as the contention made by the Counsel for the applicant, that the applicant could not have been sent to jail for a period of one year is concerned, the same is also misconceived and hence is liable to be rejected.
According to Section 125(3) of Cr.P.C., an application for recovery of arrears of maintenance amount can be filed within a period of one year from the date when such maintenance amount became due. Thus, from plain reading of Section 125(3) of Cr.P.C., it is clear that for every monthly default, the defaulter can be sent to jail for a period of one month and the application under Section 125(3) of Cr.P.C. has to be filed within a period of one year. Admittedly, the applicant has not paid even a single paisa to the respondents from the year 2009, except an amount of Rs.1,500/-. Thus, the defaulter can always be sent to jail for a period of one month for every monthly default. Thus, it is clear that for default of preceding 12 months, the defaulter can be sent to jail for a period of 12 months. Thus, the Trial Court did not commit any mistake by sending the applicant to jail for a period of 12 months or till the payment of Rs.1,50,000/- whichever is earlier.
7It is next contended by the Counsel for the applicant that he is ready to deposit an amount of Rs.20,000/- and may be granted some time to deposit the remaining amount and till the remaining amount is paid, the applicant be released from jail.
The contention made by the Counsel for the applicant, cannot be accepted and hence rejected simply on the ground that the conduct of the applicant was such, which has dis- entitled him from any sympathy. The order of interim maintenance was passed on 17-12-2009 and the final order under Section 125 of Cr.P.C. was passed on 16-12-2012, but in spite of that, only an amount of Rs.1,500/- was paid by the applicant to his wife and child. Thus, the intention of the applicant, not to pay any maintenance amount to his wife and his child, in spite of the order of the Court, is apparent. The conduct of the applicant in not complying the order of the Court, is not bona fide. Thus, under these circumstances, where the applicant had left his wife and his child without any resources and had left them to live the life of a destitute and to suffer starvation, no undue sympathy can be shown to the applicant.
Thus, in the considered opinion of this Court, no fault can be found with the orders dated 19-2-2018 and 21-2-2018 passed by the Principal Judge, Family Court, Vidisha in case No.244/2014 and accordingly, the said orders are hereby affirmed.
The revision fails and is hereby dismissed.
(G.S. Ahluwalia) Judge *MKB* Digitally signed by MAHENDRA KUMAR BARIK Date: 2018.03.22 14:19:29 +05'30'