A reading of the order dated 21.4.2004 passed by the
High Court would go to show that the proviso to Section
125(3) CrPC has been construed by the High Court to be a
fetter on the entitlement of the claimants to receive arrears
of maintenance beyond a period of one year preceding the
date of filing of the application under Section 125(3) CrPC.
Having considered the said provision of the Code we do not
find that the same creates a bar or in any way effects the
entitlement of a claimant to arrears of maintenance. What
the proviso contemplates is that the procedure for recovery
of maintenance under Section 125(3) CrPC, namely, by
construing the same to be a levy of a fine and the detention
of the defaulter in custody would not be available to a
claimant who had slept over his/her rights and has not
of the defaulter in custody would not be available to a
claimant who had slept over his/her rights and has not
approached the Court within a period of one year
commencing from the date on which the entitlement to
receive maintenance has accrued. However, in such a
situation the ordinary remedy to recover the amount of
maintenance, namely, a civil action would still be available.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1542 OF 2013
(ARISING OUT OF SLP (CRL.) NO. 4654 OF 2005)
Poongodi & Anr. ... Appellant(s)
Versus
Thangavel ...
Citation; 2013 CR L J 5006 SC
RANJAN GOGOI, J
.
Delay condoned. Leave granted.
2. The appellants are the wife and son of one Thangavel.
By an order dated 12.01.1998 passed by the learned trial
court each of the appellants have been granted maintenance
@ Rs. 300/- per month w.e.f. 04.02.1993 i.e. date of filing
of the application under Section 125 of the Code of Criminal
Procedure (CrPC). As the respondent-husband had not
complied with the order of payment, in a miscellaneous
petition, i.e., C.M.P. No. 566/1998 filed by the appellant, the
trial court by its order dated 21.07.1998 had sentenced the
respondent to imprisonment. The default in payment of
maintenance was for the period 4.2.1993 to 4.2.1998.
On 5.2.2002 another miscellaneous application (Crl.M.P.
No.394/2002) was filed by the appellants claiming
maintenance for the period 4.2.1993 to 5.2.2002. The same
was allowed by the learned Magistrate on 31.12.2002 against
which the respondent had filed Crl. R.C. No. 620/2003. The
High Court by its order dated 21.4.2004 held that as Crl.M.P.
No. 394/2002 was filed on 5.2.2002, under the first proviso to
Section 125(3) CrPC, the appellants were entitled to claim
arrears for the period of one year preceding the date of filing
of the application i.e. from 4.2.2001 to 5.2.2002.
Accordingly, the High Court directed the respondent (revision
petitioner before it) to pay the arrears for the aforesaid
period within two months failing which it was directed that an
arrest warrant would be issued against the respondent and
the sentence of imprisonment earlier imposed by the learned
Magistrate would come into effect. As the aforesaid order of
the High Court had curtailed the entitlement of the
appellants to maintenance to a period of one year prior to
the date of filing of the Crl. M.P. No. 394/2002, the appellants
have filed this appeal.
3. We have heard learned counsel for the parties.
4. A reading of the order dated 21.4.2004 passed by the
High Court would go to show that the proviso to Section
125(3) CrPC has been construed by the High Court to be a
fetter on the entitlement of the claimants to receive arrears
of maintenance beyond a period of one year preceding the
date of filing of the application under Section 125(3) CrPC.
Having considered the said provision of the Code we do not
find that the same creates a bar or in any way effects the
entitlement of a claimant to arrears of maintenance. What
the proviso contemplates is that the procedure for recovery
of maintenance under Section 125(3) CrPC, namely, by
construing the same to be a levy of a fine and the detention
of the defaulter in custody would not be available to a
claimant who had slept over his/her rights and has not
approached the Court within a period of one year
commencing from the date on which the entitlement to
receive maintenance has accrued. However, in such a
situation the ordinary remedy to recover the amount of
maintenance, namely, a civil action would still be available.
5. The decision of this Court in Kuldip Kaur v. Surinder
Singh and Anr.1
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. Paragraph 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:
“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
1
(1989) 1 SCC 405
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 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:
………. ….”
5Page 6
6. In another decision of this Court in Shantha alias
Ushadevi and Another v. B.G. Shivananjappa2
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 Khatoon & Ors. v. Amjad Ali & Ors.3
. 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 (supra).
7. The ratio of the decisions in the aforesaid cases
squarely apply to the present case. The application dated
05.02.2002 filed by the appellants under Section 125(3) was
in continuation of the earlier applications and for subsequent
periods of default on the part of the Respondent. The first
proviso to Section 125(3), therefore did not extinguish or
limit the entitlement of the appellants to the maintenance
2
(2005) 4 SCC 468
3
(1999) 5 SCC 672
granted by the learned trial court, as has been held by the
High Court.
8. In view of the above, we are left in no doubt that the
order passed by the High Court needs to be interfered with
by us which we accordingly do. The order dated 21.04.2004
of the High Court is set aside and we now issue directions to
the respondent to pay the entire arrears of maintenance due
to the appellants commencing from the date of filing of the
Maintenance Petition (M.C.No.1/1993) i.e. 4.2.1993 within a
period of six months and current maintenance commencing
from the month of September, 2013 payable on or before 7th
of October, 2013 and thereafter continue to pay the monthly
maintenance on or before the 7th of each successive month.
If the above order of this Court is not complied with by the
Respondent, the learned Trial Court is directed to issue a
warrant for the arrest of the respondent and ensure that the
same is executed and the respondent taken into custody to
suffer imprisonment as provided by Section 125(3) CrPC.
The appeal is allowed.
..………………………..………………………J.
[SUDHANSU JYOTI
MUKHOPADHAYA]
..………………………..………………………J.
[RANJAN GOGOI]
NEW DELHI
SEPTEMBER 27, 2013
Print Page
High Court would go to show that the proviso to Section
125(3) CrPC has been construed by the High Court to be a
fetter on the entitlement of the claimants to receive arrears
of maintenance beyond a period of one year preceding the
date of filing of the application under Section 125(3) CrPC.
Having considered the said provision of the Code we do not
find that the same creates a bar or in any way effects the
entitlement of a claimant to arrears of maintenance. What
the proviso contemplates is that the procedure for recovery
of maintenance under Section 125(3) CrPC, namely, by
construing the same to be a levy of a fine and the detention
of the defaulter in custody would not be available to a
claimant who had slept over his/her rights and has not
of the defaulter in custody would not be available to a
claimant who had slept over his/her rights and has not
approached the Court within a period of one year
commencing from the date on which the entitlement to
receive maintenance has accrued. However, in such a
situation the ordinary remedy to recover the amount of
maintenance, namely, a civil action would still be available.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1542 OF 2013
(ARISING OUT OF SLP (CRL.) NO. 4654 OF 2005)
Poongodi & Anr. ... Appellant(s)
Versus
Thangavel ...
Citation; 2013 CR L J 5006 SC
RANJAN GOGOI, J
.
Delay condoned. Leave granted.
2. The appellants are the wife and son of one Thangavel.
By an order dated 12.01.1998 passed by the learned trial
court each of the appellants have been granted maintenance
@ Rs. 300/- per month w.e.f. 04.02.1993 i.e. date of filing
of the application under Section 125 of the Code of Criminal
Procedure (CrPC). As the respondent-husband had not
complied with the order of payment, in a miscellaneous
petition, i.e., C.M.P. No. 566/1998 filed by the appellant, the
trial court by its order dated 21.07.1998 had sentenced the
respondent to imprisonment. The default in payment of
maintenance was for the period 4.2.1993 to 4.2.1998.
On 5.2.2002 another miscellaneous application (Crl.M.P.
No.394/2002) was filed by the appellants claiming
maintenance for the period 4.2.1993 to 5.2.2002. The same
was allowed by the learned Magistrate on 31.12.2002 against
which the respondent had filed Crl. R.C. No. 620/2003. The
High Court by its order dated 21.4.2004 held that as Crl.M.P.
No. 394/2002 was filed on 5.2.2002, under the first proviso to
Section 125(3) CrPC, the appellants were entitled to claim
arrears for the period of one year preceding the date of filing
of the application i.e. from 4.2.2001 to 5.2.2002.
Accordingly, the High Court directed the respondent (revision
petitioner before it) to pay the arrears for the aforesaid
period within two months failing which it was directed that an
arrest warrant would be issued against the respondent and
the sentence of imprisonment earlier imposed by the learned
Magistrate would come into effect. As the aforesaid order of
the High Court had curtailed the entitlement of the
appellants to maintenance to a period of one year prior to
the date of filing of the Crl. M.P. No. 394/2002, the appellants
have filed this appeal.
3. We have heard learned counsel for the parties.
4. A reading of the order dated 21.4.2004 passed by the
High Court would go to show that the proviso to Section
125(3) CrPC has been construed by the High Court to be a
fetter on the entitlement of the claimants to receive arrears
of maintenance beyond a period of one year preceding the
date of filing of the application under Section 125(3) CrPC.
Having considered the said provision of the Code we do not
find that the same creates a bar or in any way effects the
entitlement of a claimant to arrears of maintenance. What
the proviso contemplates is that the procedure for recovery
of maintenance under Section 125(3) CrPC, namely, by
construing the same to be a levy of a fine and the detention
of the defaulter in custody would not be available to a
claimant who had slept over his/her rights and has not
approached the Court within a period of one year
commencing from the date on which the entitlement to
receive maintenance has accrued. However, in such a
situation the ordinary remedy to recover the amount of
maintenance, namely, a civil action would still be available.
5. The decision of this Court in Kuldip Kaur v. Surinder
Singh and Anr.1
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. Paragraph 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:
“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
1
(1989) 1 SCC 405
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 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:
………. ….”
5Page 6
6. In another decision of this Court in Shantha alias
Ushadevi and Another v. B.G. Shivananjappa2
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 Khatoon & Ors. v. Amjad Ali & Ors.3
. 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 (supra).
7. The ratio of the decisions in the aforesaid cases
squarely apply to the present case. The application dated
05.02.2002 filed by the appellants under Section 125(3) was
in continuation of the earlier applications and for subsequent
periods of default on the part of the Respondent. The first
proviso to Section 125(3), therefore did not extinguish or
limit the entitlement of the appellants to the maintenance
2
(2005) 4 SCC 468
3
(1999) 5 SCC 672
granted by the learned trial court, as has been held by the
High Court.
8. In view of the above, we are left in no doubt that the
order passed by the High Court needs to be interfered with
by us which we accordingly do. The order dated 21.04.2004
of the High Court is set aside and we now issue directions to
the respondent to pay the entire arrears of maintenance due
to the appellants commencing from the date of filing of the
Maintenance Petition (M.C.No.1/1993) i.e. 4.2.1993 within a
period of six months and current maintenance commencing
from the month of September, 2013 payable on or before 7th
of October, 2013 and thereafter continue to pay the monthly
maintenance on or before the 7th of each successive month.
If the above order of this Court is not complied with by the
Respondent, the learned Trial Court is directed to issue a
warrant for the arrest of the respondent and ensure that the
same is executed and the respondent taken into custody to
suffer imprisonment as provided by Section 125(3) CrPC.
The appeal is allowed.
..………………………..………………………J.
[SUDHANSU JYOTI
MUKHOPADHAYA]
..………………………..………………………J.
[RANJAN GOGOI]
NEW DELHI
SEPTEMBER 27, 2013
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