The object of Section 125(1), Criminal Procedure Code seems to be to compel a person, with sufficient means, to maintain his wife and other relatives mentioned in the various clauses of that sub-section, if such person neglects or refuses to maintain them. Before, however, an order directing payment of maintenance under this provision can be made, it has to be held that the person under the obligation to pay maintenance has sufficient means. 'Means' does not signify only visible means, like real property in the shape of income, revenue or estate or a definite employment. It includes capacity to earn money. A healthy and able bodied person but without any visible or real property must be held as having means to support his wife or child. Once a person has capacity to earn, he cannot escape his liability to maintain under Section 125(1). A Full Bench of the Rangoon High Court, in Maung Tin v. Ma Hmin, AIR 1933 Ran. 138, held that sufficient means is not confined to pecuniary resources. This view was shared by the Nagpur High Court in Abdul Wahab v. Sugrabi, 37 Cr.L.J. 86. The Madhya Bharat High Court, in Prabhulal v. Parawatibai, AIR 1952 M.B. 96, even went to the extent of saying that mere minority or the fact that the husband does not work cannot come in the way of grant of maintenance to the wife. What should be ascertained is the earning capacity of the husband, if he is compelled to work. 'Means', of course, has to be sufficient to maintain. An able bodied person, in our opinion, must be held as having sufficient means to maintain and it will always be for such a person to prove to the contrary. The view taken by the Delhi High Court, in Chander Prakash v. Shila Rani, AIR 1968 Del. 174, in this regard, is that an able bodied young man must be presumed to be capable of earning sufficient money so as to be able to reasonably maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control to earn enough to discharge his legal obligation of maintaining his wife and child. We are, therefore, of the firm opinion that a person cannot avoid his liability under Section 125(1), Criminal Procedure Code merely because he has no tangible real property or income, but is otherwise able bodied and healthy and has capacity to earn. The presumption should be that such an able bodied and healthy has capacity to earn. The presumption should be that such an able bodied healthy person is possessed of sufficient means and it is for him to show that by accident, disease or the conditions of labour market or otherwise, he is not capable of earning anything.
1. Section 125(3) of the Code of Criminal Procedure provides for the consequences resulting from non-compliance of the order passed under Section 125(1), Criminal Procedure Code directing payment of maintenance allowance. Where a person under such obligation to pay maintenance allowance fails, without sufficient cause, to comply with the order granting maintenance, a warrant for the recovery of the amount may be issued on an application made to the Court to levy such amount within a period of one year from the date on which it became due. If, despite such a warrant the maintenance allowance is not paid, the person may even be sentenced to imprisonment for a term which may extend to one month or until payment, if sooner made. If, however, such person offers to maintain his wife on the condition of her living with him and the wife refuses to live with him, the Magistrate may consider any ground of refusal stated by her and may make an order as aforesaid, notwithstanding such offer, if he is satisfied that there is a just ground for so doing.
2. Can a person, suffering an order for payment of maintenance under section 125(1), Criminal Procedure Code, with no property whatsover, be sentenced to imprisonment on his failure to pay monthly maintenance allowance, even after issuance of a warrant for levy of such amount, is a question mooted in this petition. It will, therefore, be just to quote section 125(3), Criminal Procedure Code at this stage:
"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 a 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:
Provided that no warrant shall be issued for the recovery of any amount due under this section, 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:
Provided further that, if such person offers to maintain his wife on condition of her living with him and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this Section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation. - If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him".
The object of Section 125(1), Criminal Procedure Code seems to be to compel a person, with sufficient means, to maintain his wife and other relatives mentioned in the various clauses of that sub-section, if such person neglects or refuses to maintain them. Before, however, an order directing payment of maintenance under this provision can be made, it has to be held that the person under the obligation to pay maintenance has sufficient means. 'Means' does not signify only visible means, like real property in the shape of income, revenue or estate or a definite employment. It includes capacity to earn money. A healthy and able bodied person but without any visible or real property must be held as having means to support his wife or child. Once a person has capacity to earn, he cannot escape his liability to maintain under Section 125(1). A Full Bench of the Rangoon High Court, in Maung Tin v. Ma Hmin, AIR 1933 Ran. 138, held that sufficient means is not confined to pecuniary resources. This view was shared by the Nagpur High Court in Abdul Wahab v. Sugrabi, 37 Cr.L.J. 86. The Madhya Bharat High Court, in Prabhulal v. Parawatibai, AIR 1952 M.B. 96, even went to the extent of saying that mere minority or the fact that the husband does not work cannot come in the way of grant of maintenance to the wife. What should be ascertained is the earning capacity of the husband, if he is compelled to work. 'Means', of course, has to be sufficient to maintain. An able bodied person, in our opinion, must be held as having sufficient means to maintain and it will always be for such a person to prove to the contrary. The view taken by the Delhi High Court, in Chander Prakash v. Shila Rani, AIR 1968 Del. 174, in this regard, is that an able bodied young man must be presumed to be capable of earning sufficient money so as to be able to reasonably maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control to earn enough to discharge his legal obligation of maintaining his wife and child. We are, therefore, of the firm opinion that a person cannot avoid his liability under Section 125(1), Criminal Procedure Code merely because he has no tangible real property or income, but is otherwise able bodied and healthy and has capacity to earn. The presumption should be that such an able bodied and healthy has capacity to earn. The presumption should be that such an able bodied healthy person is possessed of sufficient means and it is for him to show that by accident, disease or the conditions of labour market or otherwise, he is not capable of earning anything.
3. The order under Section 125(1), Criminal Procedure Code is enforced by issuance of a distress warrant in the manner provided in the Code for levying fines. If, in spite of such a warrant, the monthly allowance awarded under Section 125(1) remains unpaid, an order for imprisonment as provided under Section 125(3) may be-passed. A Single Bench of this Court in Bhure Balram v. Gomtibai, 1981 MPLJ 277, has even observed that issuance of distress warrant before directing imprisonment under Section 125(3), Criminal Procedure Code is not mandatory and if the attitude of the husband (in that case) shows that the maintenance amount may not be paid even after a distress warrant is issued, directing imprisonment is justified. It was observed that imprisonment is a means of enforcement of payment and an order of imprisonment can be passed, if there has been negligence to pay maintenance.
4. All that is required to be seen before issuance of an order under section 125(3), Criminal Procedure Code is that the person under the obligation to pay maintenance has failed, without sufficient cause, to comply with that order. In Patiram v. Binabai, Cr. Revision No. 402 of 1983 decided on 11-11-1985, late Justice K. K. Adhikari observed that sub-section (3) of section 125, Criminal Procedure Code, is subject to sub-section (1) of section 125. Consequently, it was held that a person suffering an order under section 125(1) can resist enforcement of that order, saying that he has no sufficient means to pay. In that case, the finding recorded was that the husband, who was directed to pay maintenance allowance to his wife was not possessed of any property, except cooking utensils. It was, therefore, held that he has no sufficient means to pay and it was held to be a sufficient cause for non-compliance of the order under Section 125(1). Even if we were to agree with the learned Judge, when he holds that the provisions of sub-section (3) of section 125 are subject to the provisions of sub-section (1) or that both these sub-sections may be read together, yet, in our opinion, mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under Section 125(1), as even at the stage of enforcement of the order under Section 125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payment, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligation despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub-section (3) of Section 125. We, therefore, with all due respect to the learned Judge, cannot agree with him, when he has said in Patiram's case (supra) that mere non-possession of any tangible property or real estate or mere visible income will entitle a person to avoid payment of maintenance allowance awarded under Section 125(1).
5. In the instant case, the applicant was directed to pay maintenance allowance to respondents Nos. 1 and 2. On his failure to discharge that liability, proceedings under Section 125(3) were initiated on the application moved by respondents Nos. 1 and 2. When the amount was not paid despite distress warrant, the Magistrate directed imprisonment, vide order dated 18-1-1988. That order was upheld in revision by the Additional Sessions Judge, vide Annexure-B. It is true that the finding recorded by the Lower Court is that the applicant-husband is not possessed of property. That, in our opinion and for the reasons recorded by us above, will not entitle the petitioner to withhold payment of maintenance allowance. We are, therefore, of the opinion that the petitioner has failed to pay maintenance allowance awarded under Section 125(1), Criminal Procedure Code in favour of respondents Nos. 1 and 2, without sufficient cause. He has not paid that amount despite issuance of distress warrant. The imprisonment awarded by the Magistrate is, therefore, well justified. The petition is dismissed, but without any order as to costs.
Print Page
Madhya Pradesh High Court
Durga Singh Lodhi vs Prembai W/O Durga Singh And Ors. on 2 January, 1990
Equivalent citations: 1990 (0) MPLJ 332
Bench: B Varma, D Dharmadhikari
1. Section 125(3) of the Code of Criminal Procedure provides for the consequences resulting from non-compliance of the order passed under Section 125(1), Criminal Procedure Code directing payment of maintenance allowance. Where a person under such obligation to pay maintenance allowance fails, without sufficient cause, to comply with the order granting maintenance, a warrant for the recovery of the amount may be issued on an application made to the Court to levy such amount within a period of one year from the date on which it became due. If, despite such a warrant the maintenance allowance is not paid, the person may even be sentenced to imprisonment for a term which may extend to one month or until payment, if sooner made. If, however, such person offers to maintain his wife on the condition of her living with him and the wife refuses to live with him, the Magistrate may consider any ground of refusal stated by her and may make an order as aforesaid, notwithstanding such offer, if he is satisfied that there is a just ground for so doing.
2. Can a person, suffering an order for payment of maintenance under section 125(1), Criminal Procedure Code, with no property whatsover, be sentenced to imprisonment on his failure to pay monthly maintenance allowance, even after issuance of a warrant for levy of such amount, is a question mooted in this petition. It will, therefore, be just to quote section 125(3), Criminal Procedure Code at this stage:
"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 a 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:
Provided that no warrant shall be issued for the recovery of any amount due under this section, 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:
Provided further that, if such person offers to maintain his wife on condition of her living with him and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this Section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation. - If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him".
The object of Section 125(1), Criminal Procedure Code seems to be to compel a person, with sufficient means, to maintain his wife and other relatives mentioned in the various clauses of that sub-section, if such person neglects or refuses to maintain them. Before, however, an order directing payment of maintenance under this provision can be made, it has to be held that the person under the obligation to pay maintenance has sufficient means. 'Means' does not signify only visible means, like real property in the shape of income, revenue or estate or a definite employment. It includes capacity to earn money. A healthy and able bodied person but without any visible or real property must be held as having means to support his wife or child. Once a person has capacity to earn, he cannot escape his liability to maintain under Section 125(1). A Full Bench of the Rangoon High Court, in Maung Tin v. Ma Hmin, AIR 1933 Ran. 138, held that sufficient means is not confined to pecuniary resources. This view was shared by the Nagpur High Court in Abdul Wahab v. Sugrabi, 37 Cr.L.J. 86. The Madhya Bharat High Court, in Prabhulal v. Parawatibai, AIR 1952 M.B. 96, even went to the extent of saying that mere minority or the fact that the husband does not work cannot come in the way of grant of maintenance to the wife. What should be ascertained is the earning capacity of the husband, if he is compelled to work. 'Means', of course, has to be sufficient to maintain. An able bodied person, in our opinion, must be held as having sufficient means to maintain and it will always be for such a person to prove to the contrary. The view taken by the Delhi High Court, in Chander Prakash v. Shila Rani, AIR 1968 Del. 174, in this regard, is that an able bodied young man must be presumed to be capable of earning sufficient money so as to be able to reasonably maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control to earn enough to discharge his legal obligation of maintaining his wife and child. We are, therefore, of the firm opinion that a person cannot avoid his liability under Section 125(1), Criminal Procedure Code merely because he has no tangible real property or income, but is otherwise able bodied and healthy and has capacity to earn. The presumption should be that such an able bodied and healthy has capacity to earn. The presumption should be that such an able bodied healthy person is possessed of sufficient means and it is for him to show that by accident, disease or the conditions of labour market or otherwise, he is not capable of earning anything.
3. The order under Section 125(1), Criminal Procedure Code is enforced by issuance of a distress warrant in the manner provided in the Code for levying fines. If, in spite of such a warrant, the monthly allowance awarded under Section 125(1) remains unpaid, an order for imprisonment as provided under Section 125(3) may be-passed. A Single Bench of this Court in Bhure Balram v. Gomtibai, 1981 MPLJ 277, has even observed that issuance of distress warrant before directing imprisonment under Section 125(3), Criminal Procedure Code is not mandatory and if the attitude of the husband (in that case) shows that the maintenance amount may not be paid even after a distress warrant is issued, directing imprisonment is justified. It was observed that imprisonment is a means of enforcement of payment and an order of imprisonment can be passed, if there has been negligence to pay maintenance.
4. All that is required to be seen before issuance of an order under section 125(3), Criminal Procedure Code is that the person under the obligation to pay maintenance has failed, without sufficient cause, to comply with that order. In Patiram v. Binabai, Cr. Revision No. 402 of 1983 decided on 11-11-1985, late Justice K. K. Adhikari observed that sub-section (3) of section 125, Criminal Procedure Code, is subject to sub-section (1) of section 125. Consequently, it was held that a person suffering an order under section 125(1) can resist enforcement of that order, saying that he has no sufficient means to pay. In that case, the finding recorded was that the husband, who was directed to pay maintenance allowance to his wife was not possessed of any property, except cooking utensils. It was, therefore, held that he has no sufficient means to pay and it was held to be a sufficient cause for non-compliance of the order under Section 125(1). Even if we were to agree with the learned Judge, when he holds that the provisions of sub-section (3) of section 125 are subject to the provisions of sub-section (1) or that both these sub-sections may be read together, yet, in our opinion, mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under Section 125(1), as even at the stage of enforcement of the order under Section 125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payment, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligation despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub-section (3) of Section 125. We, therefore, with all due respect to the learned Judge, cannot agree with him, when he has said in Patiram's case (supra) that mere non-possession of any tangible property or real estate or mere visible income will entitle a person to avoid payment of maintenance allowance awarded under Section 125(1).
5. In the instant case, the applicant was directed to pay maintenance allowance to respondents Nos. 1 and 2. On his failure to discharge that liability, proceedings under Section 125(3) were initiated on the application moved by respondents Nos. 1 and 2. When the amount was not paid despite distress warrant, the Magistrate directed imprisonment, vide order dated 18-1-1988. That order was upheld in revision by the Additional Sessions Judge, vide Annexure-B. It is true that the finding recorded by the Lower Court is that the applicant-husband is not possessed of property. That, in our opinion and for the reasons recorded by us above, will not entitle the petitioner to withhold payment of maintenance allowance. We are, therefore, of the opinion that the petitioner has failed to pay maintenance allowance awarded under Section 125(1), Criminal Procedure Code in favour of respondents Nos. 1 and 2, without sufficient cause. He has not paid that amount despite issuance of distress warrant. The imprisonment awarded by the Magistrate is, therefore, well justified. The petition is dismissed, but without any order as to costs.
No comments:
Post a Comment