Punjab-Haryana High Court
Jitender vs Dayawanti on 12 September, 2013
CRR (F)-39-2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR (F)-39-2013 (O&M)
Date of decision: 12.09.2013
Jitender
........ Petitioner
Versus
Dayawanti
........ Respondent
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
PRESENT: Mr. N.S. Panwar, Advocate for the petitioner.
Mr. Amit Kumar Goyal, Advocate for the respondent.
R.P. NAGRATH, J.
Two execution applications for recovery of arrears of maintenance allowance were pending before the District Judge (Family Court). Execution Application No. 8 of 2010 was filed on 4.9.2010 and second Execution Application No. 34 of 2013 was filed on 27.2.2013. In the first execution, arrears of maintenance were claimed for the period from 2.6.2009 to 31.8.2010 amounting to ` 22,500/- and in the second execution, the arrears of maintenance for the period from 31.8.2010 to 5.2.2013, amounting to ` 45,000/- were due. Order for maintenance was passed by the learned Additional Chief Judicial Magistrate, Sonepat, Kartaria Rishu 2013.09.13 15:58 I attest to the accuracy and integrity of this document CRR (F)-39-2013 (O&M) -2- fixing the maintenance @ ` 1500/- per month from the date of filing of the application. On establishment of the Family Court in District Sonepat, both the executions were disposed of by the Executing Court by a common order on 26.3.2013, sentencing the petitioner to total imprisonment for 12 months for the entire period which has been impugned in the instant petition.
2. Learned counsel for the petitioner contended that marriage of the parties was solemnized on 4.12.1998 and it was stated in the grounds of revision that respondent was already married with one Rambir S/o Chand Ram resident of Holambi, Delhi and marriage between the parties was thus void and so the respondent had no right to claim maintenance under Section 125 Cr.P.C. On these allegations, a criminal complaint was also filed against the respondent-wife which was sent by the Magistrate for investigation. The police submitted report in the said complaint which was fixed for hearing on 10.5.2013. These questions, however, cannot be gone into in the instant petition because the order of maintenance awarded by the Magistrate was not challenged by way of revision. The fact remains that the parties lived together as husband wife for many years.
3. Faced with the above situation the only grouse of the petitioner in the instant petition was confined to interpretatin of sub- section (3) of Section 125 Cr.P.C which says that the defaulter cannot be sent to jail for the period for exceeding one month at a time or until the payment if sooner made. This contention is based on the judgment of the Apex Court in Shahada Khatoon and others Vs. Amjad Ali and others, Kartaria Rishu 2013.09.13 15:58 I attest to the accuracy and integrity of this document CRR (F)-39-2013 (O&M) -3- (1999) 5 SCC 672.
4. It may be mentioned here that during pendency of the instant petition, the petitioner was released on interim bail by this Court on 4.5.2013 subject to the satisfaction of Chief Judicial Magistrate, Sonepat.
5. After having heard learned counsel for the parties, I find myself unable to agree with the contention raised by learned petitioner's counsel.
6. This controversy has been elaborately dealt with by this Court in Sunit Kumar Vs. Rita and others, 2013 (3) RCR (Criminal) 51, by making specific reference to the judgment of the Apex Court in Shahada Khatoon's case (supra). In Sunit Kumar's case (supra) this Court held as under:-
"11. --------In this case the respondent has been sentenced to undergo imprisonment for a period of twelve months from 27.2.2013 on account of failure to pay the arrears of maintenance of ` 3,30,000/- for the period from 19.5.2009 to 19.1.2013, which is a just and appropriate order, in default to pay the maintenance allowance. In other words, it is open for the court to award sentence up to a maximum of one month for each month of default committed by the person ordered to pay maintenance and the maximum limit of sentence of one month referred to in sub section (3) of section 125 of the Code will be applicable for each month of default. The maintenance Kartaria Rishu 2013.09.13 15:58 I attest to the accuracy and integrity of this document CRR (F)-39-2013 (O&M) -4- claim has to be construed continuing liability which becomes due at the end of every month. So, the defaulter has to suffer imprisonment on each default to pay the maintenance. On undergoing imprisonment in default of maintenance will not wipe out the liability which shall subsist till the payment is made.
12. The case law cited by the Ld. Counsel for the petitioner is distinguishable from the present case. Keeping in view the above discussion, this Court is of the opinion that the petitioner is not entitled to any discretionary relief. There is no illegality in the order dated 27.02.2013 passed by the learned District Judge, Family Court, which do not warrant any interference by this Court. In the result, this Criminal Revision is liable to be dismissed. Accordingly, the same is dismissed."
7. It was similarly held by this Court in Puran Singh Vs. Surjit Kaur, (1995) 109 PLR 559 that sub-section (3) of Section 125 Cr.P.C. does not enjoin that there should be a separate warrant in respect of each term of imprisonment for one month. In other words, where the arrears were allowed to accumulate, the Court can issue one warrant and impose a cumulative sentence of imprisonment. In the said case the petitioner was ordered to pay arrears of maintenance for more than six months. Reliance was placed by this Court in Puran Singh's case (supra) a Full Bench judgment of five Judges of the Hon'ble Allahabad Kartaria Rishu 2013.09.13 15:58 I attest to the accuracy and integrity of this document CRR (F)-39-2013 (O&M) -5- High Court in Emperor Vs. Beni, AIR 1938 All 386 , for coming to the said conclusion.
8. The learned lower Court has taken due notice of the fact that when second execution was filed, arrears of maintenance from 31.8.2010 to 5.2.2013 were claimed whereas under sub-section (3) of Section 125 Cr.P.C., no warrant can be issued to anyone unless application is made to the Court to levy such an amount within a period of one year from the date when it becomes due. Even the first execution related to the arrears from 2.6.2009 to 31.8.2010 total amounting to ` 22,500/- which was filed on 4.9.2010 was well within time.
9. The petitioner made statement before the Family Court that he was not having any movable or immovable property and thus unable to make payment of arrears of maintenance. Even when the instant petition was argued, the petitioner's counsel submitted that petitioner was not prepared to make payment of arrears being a poor person. I am of the considered view that when an order is passed by fixing maintenance allowance which attained finality the determination was obviously made by examining capability of the petitioner to pay maintenance and inability of respondent-wife to maintain herself.
10. I am however of the view that Family Court ought to have awarded separate sentences under each of execution petition. The order to that extent is required to be modified. Keeping in view the fact that the first Execution Application No. 8 of 2010 was filed on 4.9.2010, soon after the decision of maintenance application, for recovery of arrears of Kartaria Rishu 2013.09.13 15:58 I attest to the accuracy and integrity of this document CRR (F)-39-2013 (O&M) -6- maintenance for the period from 2.6.2009 to 31.8.2010, amounting to ` 22,500/- and that the second Execution Application No. 34 of 2013 was filed on 27.2.2013 for a period of about 2½ years, I find that the appropriate sentence should be 4 months of imprisonment in default of making payment of arrears in the Execution Application No. 8 of 2010 and a period of 7 months imprisonment in default of making payment of arrears for a period of one year or till payment is made amounting to ` 18,000/- to be undergone consecutively. The period already undergone shall be adjusted towards the sentence awarded in first Execution No. 8 of 2010, instituted on 4.9.2010.
11. Accordingly, the sentence as awarded by the trial Court is modified. With this modification in the sentence, the revision petition is dismissed.
12. The interim bail granted by this Court to the petitioner stands cancelled and he shall surrender before the District Judge, Family Court, Sonepat, within 15 days from today to undergo rest of the imprisonment. In case of his failure to do so, the Executing Court, shall issue his warrants to enforce the compliance of this order. Copy of this order be also sent to the District Judge, Family Court, Sonepat, for immediate compliance.
September 12, 2013 ( R.P. NAGRATH )
rishu JUDGE
Kartaria Rishu
2013.09.13 15:58
I attest to the accuracy and
integrity of this document