Sunday, January 26, 2014

In Kerala husband can be imprisoned one month for each month default in payment of maintenance u.sec 125 CrPC !! meaning he can be imprisoned for years if he is a poor fella !!! or if he looses his job due to imprisonment !!! Kerala HC Gem !! Imprisonment also does NOT mean he will be absolved, relieved of dues; he has to pay when he is out

husband can be imprisoned one month for each month default in payment of maintenance under sec 125 CrPC !! meaning he can be imprisoned for years if he is a poor fella !!! or if he looses his job due to imprisonment !!! Kerala HC Gem !! Imprisonment also does NOT mean he will be absolved, relieved of dues; he has to pay when he is out



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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Kerala High Court

Revision Petitioners vs State ( By Adv. Sri.Vijai Mathews )

PRESENT:

THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &

THE HONOURABLE MR. JUSTICE P.D.RAJAN

MONDAY, THE 18TH DAY OF NOVEMBER 2013/27TH KARTHIKA, 1935

RPFC.No. 34 of 2010 ( )

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MC.NO.365/2002 OF FAMILY COURT, KOZHIKODE. ......

REVISION PETITIONER(S):

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SANTHOSH, S/O.VELLAN,

C. NO.5976, CENTRAL PRISON,

KANNUR.

BY ADV. SRI.VIJAI MATHEWS (STATE BRIEF).

RESPONDENT(S):

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1. STATE OF KERALA.

2. PUSHPA, D/O.MADHAVAN, ARIYIL MEETHAL HOUSE, ATHOLI AMSOM, KOLAKKAD DESOM, P.O.KOLAKKAD, KOZHIKODE DISTRICT.

3. MANESH (MINOR), (REPRESENTED BY 1ST RESPONDENT MOTHER AS GUARDIAN). BY ADV. SRI.RAJA VIJAYARAGHAVAN (AMICUS CURIAE).

THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18-11-2013, ALONG WITH RPFC. NO. 47 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:


ANTONY DOMINIC & P.D.RAJAN, JJ.
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R.P(FC).Nos.34, 47, 89, 156, 175, 179, 180, 182, 228, 230, 231, 279, 286, 290, 331, 354, 360 & 380 of 2010 and 27, 40, 61, 84, 89, 99, 113, 120, 121, 136 & 142 of 2011
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Dated this the 18th day of November, 2013

O R D E R

Antony Dominic, J.


1.Section 125 of the Cr.PC provides for order for maintenance of wives, children and parents. Sub-section (3) of section 125 provides that if any person ordered to pay maintenance fails without sufficient cause to comply with the order, the 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 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. The first proviso to this sub-section provides that no warrant shall be issued for the recovery of any amount due under section 125 (3), unless application is made to the court to levy such amount within a period of one year from the date on which the amount became due. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

2.The consequences that will visit on a husband who does not pay maintenance to the wife in full or part, despite a warrant issued by a Magistrate calling upon him to pay the dues, came up for consideration before this Court in Sundaran v. Sumathi [2006 (3) KLT 725]. In that case, relying on the judgment of the Apex Court in Shahada Khatoon v. Amjad Ali [2000(1) KLT 696 (SC)], it was contended that irrespective of the number of defaults that are committed in paying each month's maintenance, in section 125(3) there is a cap of one month on the total period of imprisonment that can be imposed and that therefore, the sentence of imprisonment ordered by a Magistrate for more than one month is illegal. These contentions were answered by the learned Judge thus:

"5. The counsel argues that the Supreme Court in Shahada's case (supra) has laid down the proposition that whatever be the number of months of default, a defaulter can be sentenced to imprisonment only for one month if such complaint about breach in respect of plurality of months is made in one petition.

6. On the face of it the contention appears to me to be illogical, irrational and unreasonable. The statutory provisions under S.125(3) Cr.P.C make it very clear that one month's imprisonment is the maximum imprisonment for each month's default. If that be so, merely because the destitute lady/child/parent has come to the Court to complain about default in respect of the amount due for more months than one, the defaulter cannot obviously claim immunity or any advantage.

7. The policy of law cannot be to compel such claimants to come to Court with separate petitions for each month's default. That would be a totally unreasonable manner of approaching the question.

I requested the learned counsel for the petitioner to take me through the judgment in Shahada Khatoon in detail to find out whether any such proposition emerges from the decision of the Supreme Court. It is a very short judgment. I extract the entire judgment below:

" The short question that arises for consideration is whether the learned Single Judge of the Patna High Court correctly interpreted sub-s.(3) of S.125 of Cr.P.C. by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned counsel for the appellants contends that the liability of the husband arising out of an order passed under S.125 to make payment of maintenance is a continuing one and on account of non- payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. We are unable to accept this contention of the learned counsel for the appellants. The language of sub-s. (3) of S.125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment if sooner made. This power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month. For breach or non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month. In that view of the matter the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. The appeal accordingly fails and is dismissed."

(emphasis supplied)

8. I have carefully gone through each sentence in the judgment extracted above. It is impossible to deduce the conclusion which the learned counsel for the petitioner wants this court to accept from any sentence of the judgment or the cumulative effect of all the sentences. The Supreme Court has not held so. It would be unreasonable for this court to hold that the Supreme Court has held so because it goes against the policy of law and the specific stipulations in S.125 (3). I have adverted to this contention in detail, though a reading of the statutory provisions in the light of the decision of the Supreme Court does not leave behind any doubt in my mind, only because it is submitted at the Bar that many Family Courts/Magistrates do choose to follow the interpretation which the petitioner wants to place on the decision in Shahada's case, I need only say that the Supreme Court has not held so. It would be myopic and puerile to hold that the Supreme Court said so. The statutory provisions must lead to the inevitable and unmistakable conclusion that each month's default would be visited with the maximum sentence of one month's imprisonment. The mere fact that the destitute has not chosen to complain every month and has chosen to complain of the breach in respect of plurality of months in one petition within a period of 12 months cannot at all deliver to the defaulter any undeserved advantage. This contention is obviously unacceptable and unsustainable. The Supreme Court was obviously not considering the question whether more than one months imprisonment can be awarded for breach of the direction to pay maintenance committed in respect of more months than one. Though the tactual matrix is not adverted to in detail in the judgment extracted above it is evident that the Supreme Court was considering the question whether more than one month's imprisonment can be imposed on the defaulter if the breach to pay maintenance for one month continues for more months than one. If the default to pay maintenance for a particular month continues for any length of time, maximum imprisonment of one month alone can be imposed. That is all what the Supreme Court has held. The Supreme Court was considering the contention by the counsel that in the event of breach, the defaulter can be detained in custody till the payment is made. That is evident from the judgment (see the portion underlined which refers to the contention). That contention was repelled holding that endless detention until payment was effected cannot be made. There is no reported decision of this court or any other court on the interpretation of Shahada Khatoon except that of the Allahabad High Court. I respectfully disagree with the learned Judge of the Allahabad High Court who understood Shahada Khatoon differently in Dhilip Kumar v. Family Court (2000) Crl.L.J. 3893) without reference to the earlier decisions of that Court in Emperor v. Beni (AIR 1938 Allahabad 386) (F.B.) and Ram Bilas v. Bhagwati Devi (1991 Crl.L.J. 1098).

9. To sum up -

(a) If there is no payment of maintenance due for ' n' number of months the defaulter in one Execution Petition can be sentenced to imprisonment upto a maximum of 'n' months, provided 'n' does not exceed

(b) If there is breach of payment of maintenance due for one particular month - notwithstanding the fact that such payment was not made for 'n' months from the date on which it became due, the defaulter can be sentenced only to maximum imprisonment for one month and not 'n' months. Even when the breach in respect of one particular month continues for any length of time, the maximum sentence for breach of the liability to pay one month's maintenance continues to be one month only."

3. In so far as these cases are concerned, these are filed by persons who admittedly have committed default in paying the maintenance. The petitioner in RP(FC).34/10 committed default in paying monthly allowance for a period of 12 months and the Family Court, Kozhikode sentenced him to undergo simple imprisonment for a period of six months. Similarly, the petitioner in RP(FC).231/10 committed default in paying maintenance payable for 67 months and the Family Court, Malappuram sentenced him to undergo imprisonment for a period of 20 months. In so far as the petitioner in RP(FC). 89/10 is concerned, he was sentenced to undergo imprisonment for a period of 17 months. Similar is the case with the other petitioners as well.

4.When these cases came up for consideration before a learned single Judge of this Court, relying on the provisions of section 125(3) Cr.PC, it was contended that if the said provision is understood in the light of the Apex Court judgment in Shahada Khatoon (supra), irrespective of the number of defaults, the Magistrate does not have the power to order imprisonment for more than one month, provided a claim is made in one execution petition. The learned Judge accordingly considered the matter and prima facie found that the principles laid down by the Apex Court in Shahada Khatoon (supra) supports the contention raised and also found support to that view in the judgments of the Allahabad High Court and the Andra Pradesh High Court in Dhilip Kumar v. Family Court [(2000) Crl.L.J. 3893] and Abdul Gafaoor v. Hameema Khatoon [(2004) Crl. L.J. 1280] respectively. On that basis, doubting the correctness of this Court's judgment in Sundaran (supra) and to resolve the conflicting views, these matters were referred by the learned single Judge by his order dated 6.8.2010. It is accordingly that the matters came to be listed before us.

5.We heard the learned counsel for the petitioners, who appeared on State Brief and Sri.Raja Vijayaraghavan who was appointed as the Amicus Curiae.

6.Counsel for both sides took us through the provisions of the Act, various judgments of the Apex Court, this Court and the different High Courts dealing with all aspects of the issue and we have considered the submissions made.

7.Section 125(3) and its provisos read as follows:

"125. Order for maintenance of wives, children and parents.--

(1) xxxxx xxxxxx

(2) xxxxxx xxxxxx xxxxxx

(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 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."

8.The first part of section 125(3) shows that if a person fails without sufficient cause to comply with the order directing payment of maintenance, for every breach of the order, the Magistrate may issue a warrant for levying the amount due in the manner provided for levying fines. The second part of the sub-section provides that if after the circulation of the warrant, the attempt for recovery of the amount due fails, the Magistrate may sentence the defaulter to imprisonment for whole or any part of each month's allowance and expenses remaining unpaid, to imprisonment. Third part of this provision states that such imprisonment shall be for a term which may extend to one month or until payment if sooner made. The first proviso to this sub-section shows that the Legislature has empowered the Magistrate to issue warrant to recover the amount due only if the application for levying the amount due, as contemplated in sub-section (3), is filed within a period of one year from the date on which the amount became due.

9. A conjoint reading of these provisions of sub-section (3) shows that for every breach of the order, the Magistrate is empowered to issue a warrant provided application is made within one year from the date on which the amount became due and if the amount is remaining unpaid after the execution of the warrant, the Magistrate is empowered to sentence the defaulter to imprisonment for a term which may extend to one month or until payment if sooner made, for the whole or any part of the amount that is remaining unpaid. In sum and substance, the provision empowers the Magistrate to issue warrant for every breach of the order and sentence a person to imprisonment which may extend to one month or until payment if sooner made for such breach. In other words, despite execution of the warrant issued on the application that is to be filed within 12 months of the amount becoming due, if amount is not paid, law contemplates a breach for the non-payment of each month's allowance and for such breach, the defaulter is liable to be imprisoned. However, though one month is the maximum period of such imprisonment for each breach, the Magistrate has the discretionary power in fixing the period of imprisonment. This is what the law prescribes and the view that has been taken by the learned Judge in the judgment in Sundaran (supra) is not different.

10.In our view, a contrary view is not warranted from the principles laid down by the Apex Court in Shahada Khatoon (supra). That was a case where the contention raised by the counsel for the petitioner was that the liability of the husband arising out of the order passed under section 125 Cr.PC to make payment of maintenance is a continuing one and on account of the non-payment, the breach of the order is a continuing one and therefore, the Magistrate would be entitled to sentence such a person continuing him in custody until payment is made. In other words, what was contended was that section 125(3) authorises the Magistrate to order imprisonment of a defaulter so long as the breach continues.

Such a contention, in our view, is untenable in the face of the period of one month specified in sub-section (3) of section 125 for every breach and it was therefore that the Apex Court concluded that by no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month. This judgment only answers the contention raised and the judgment does not lay down any principle which is of relevance in a case where, in an application filed, default was committed for more than one month. Therefore, to our understanding, the judgment in Shahada Khatoon (supra) cannot be relied on to contend that Sundaran (supra) case was wrongly decided. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

11.The view taken by us also finds support from several other judgments that were cited before us. King Emperor v. Budhoo Mandal Gond [1949 Crl.L.J.673] was a case where for the default in payment of maintenance allowance for four months, the defaulter was sentenced to undergo imprisonment for four months. The provision that was relevant at that time was section 488(3) of Cr.PC, 1882 and the Bombay High Court held thus:

"1. The non applicant Budhoo was sentenced to undergo four months rigorous imprisonment under Section 488(3). Criminal P.C., by the First Class Magistrate, Bilaspur, for his failure to pay Rs.40, maintenance allowance to his wife at the rate of Rs. 10 per mensem; and the Sessions Judge, Raipur, has now reported the case under Section 488, Criminal P.C, to have that sentence reduced to one month, the maximum prescribed by Section 488(3), ibid.

2. The reference cannot be accepted and it appears to me that it was founded on a mistaken view of the effect of S.488(3), Criminal P.C. It is true that in Queen Empress v. Narain 9 ALL.240: (1887 A.W.N.54), it was held that the maximum term of imprisonment under the sub section in question was one month, and that only one month's imprisonment could be awarded n the whole in default of payment of the aggregate of the amounts due. That view was, however dissented from in Allapichai Bavuthar v. Mohidin Bibi 20 Mad. 3:(2 Weir 638), in which a Division Bench of the Madras High Court held that the maximum imprisonment where one warrant only was issued was one month for each month's arrears of maintenance and if there was a balance for a portion of a month a further term of a month's imprisonment might be imposed for such arrears. A Full Bench of the Allahabad High Court in Emperor v. Beni I.L.R (1938) ALL.750: (AIR (25) 1938 ALL.386:39 Cr.L.J. 720(F.B.)) overruled the earlier Allahabad case and followed the decision in the Madras case as well as in Bhiku Khan v. Zahuran, 25 Cal.291, Emperor v. Sardar Muhammad, A.I.R. (22) 1935 Lah. 758: (37 Cr.LJ. 207) and Emperor v. Budhu Ram 50 I.C.847: (A.I.R.(6) 1919 Lah. 197: 20 Cr.L.J.367). A Division Bench of the Rangoon High Court followed the view taken in Allapichai Ravuthar v. Mohidin Bibi, 20 Mad.3: (2 Weir 638), Bhiku Khan v. Zahuran, 25 Cal.291 and Emperor v. Beni I.L.R. (1938) ALL.750: (A.I.R.(25) 1938 ALL.386: 39 Cr.L.J.720(F.B.)) and I am in respectful agreement with that view.

3. Section 316, Criminal P.C. of 1861 was as follows:

"The Magistrate may, for every breach of the order, by warrant direct the amount due to be levied in the manner provided for levying fines or may order such person to be imprisoned with or without hard labour for any term not exceeding one month."

The relevant part of Section 488(3), Criminal P.C. of 1882, is:

"Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any 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."

Section 488 of the present Criminal Procedure Code is in the same terms as Section 488, Criminal P.C. Of 1882.

4. The change in the wording is significant and the introduction of the words "for the whole or any part of each month's allowance" is, as the learned Judges pointed our in Emperor v. Beni, ILR (1938) All. 750; (AIR (25) 1938 All.386; 39 Crl.L.J.720 (FB)), vital and they would be unmeaning if it were held that Magistrates can impose a term of imprisonment for only one month under section 488 Cr.PC.

5. The reference is accordingly rejected."

12.The issue came up for consideration again before the Full Bench of the Bombay High Court in Karson Ramji Chawda v. The State of Bombay [AIR 1958 Bom 99], where, a defaulter in paying four month's maintenance allowance was directed to undergo imprisonment for 15 days for each default. The contention raised in that case was that in passing a sentence for two months, the Magistrate exceeded the jurisdiction conferred on him under section 488(3) of the Cr.PC. This contention was repelled by the Bombay High Court holding thus:

"Therefore, this sub-section confers upon the Magistrate two independent powers: one to issue a warrant which has to be executed in the manner laid down in the sub-section and the other to sentence the person also in the manner laid down in the sub-section. The fallacy underlying Mr.Kotwal's argument is that the sentence follows upon the issue of a warrant. That is not the section. The power of the Magistrate to sentence the applicant is not dependent upon the issue of the warrant, or in other words the issue of the warrant is not a condition precedent to the jurisdiction of the Magistrate to sentence the applicant. Therefore, if we read the provision with regard to the power of the Magistrate to sentence the applicant independently of the power to issue the warrant, it is clear that the power to sentence is for the whole or any 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. Now these words clearly lay down the power of the Magistrate. The power of the Magistrate is in respect of whole or any part of each month's allowance remaining unpaid to sentence the applicant for a term not exceeding one month.

Now, the view taken in this unreported judgment was based, with respect, on the assumption with which we have just dealt that a separate warrant should issue for each separate monthly default and when that is done, the maximum punishment can be one month's imprisonment. This view proceeds on the basis that whenever there is a default, a warrant has to be issued and the Magistrate must proceed to sentence the applicant after the warrant has been issued. With respect, there is no warrant for this view and this decision was based on a judgment of the Allahabad High Court reported in Queen-Empress v. Narain ILR 9 All 240 (B). The Allahabad High Court since then in a Full Bench has come to a contrary conclusion: see Emperor v. Beni. Mr.Chandrachud has also drawn our attention to the judgments in Allapichai Ravuthar v. Mohidin Bibi, ILR 20 Mad 3 (D), and in King Emperor v. Budhoo Mandal, which have also taken the same view and, according to the Allahabad High Court, presumably the decision in Bhiku Khan v. Zahu-ran, ILR 25 Cal 291 (F), is also to the same effect. It may also be pointed out that the history of this section also supports the view that we have taken. In the Code of 1861, the section ran in the following terms:

"The Magistrate may, for every breach of the order by warrant, direct the amount due to be levied in the manner provided for levying fines; or may order such erson to be imprisoned with or without hard labour for any term not exceeding one month."

When the Code was amended in 1882, the words substituted were the same as in the Code of 1893.

3. In our opinion, therefore, the learned Magistrate was right in the order that he passed. The result is the application fails and must be dismissed. The applicant to surrender to his bail."

13.Mohammed kutty v. State of Kerala [1984 KLT 835] was a case where, for default in paying the monthly allowance due for the period from 24.6.1981 to 28.3.1983, the defaulter was ordered to undergo imprisonment for a period of 21 months. Repelling an identical contention and following the Full Bench judgment of the Bombay High Court in Karson Ramji Chawda (supra), this Court held thus:

"5. The next question relates to the quantum of punishment that can be imposed for recovery of arrears of maintenance. Under S.125(3), the sentence, for the whole or any part of each month's allowance remaining unpaid, after the execution of the warrant, can only be imprisonment for a term which may extend to one month or until payment if sooner made. Does this provision mean that the maximum sentence which the Magistrate can impose is only one month? The power to sentence is in respect of the whole or any part, of each month's allowance defaulted and therefore for the default in respect of each month, there can be a sentence of imprisonment upto one month. It is not correct to assume that the power of Magistrate is to impose only a month's imprisonment irrespective of the duration of the arrears of maintenance. A month's imprisonment for every month's default is the maximum penalty under S.125 (3) and not a maximum of a month's imprisonment for the total default.

6. This is the view expressed in a Full Bench ruling of the Bombay High Court in K.R. Chawda v. State of Bombay (AIR. 1958 Bombay 99) where Chagla C J. speaking on behalf of Gajendragadkar and Vyas JJ. observed thus:

"The power of the Magistrate to sentence the applicant is not dependent upon the issue of the warrant, or in other words the issue of the warrant is not a condition precedent to the jurisdiction of the Magistrate to sentence the applicant. Therefore, if we read the provision with regard to the power of the Magistrate to sentence the applicant independently of the power to issue the warrant, it is clear that the power to sentence is for the whole or any 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 ooner made. Now these words clearly lay down the power of the Magistrate. The power of the Magistrate is in respect of whole or any part of each month's allowance remaining unpaid to sentence the applicant for a term not exceeding one month."

7. This has been followed by the Andhra Pradesh High Court in Gangula Pratao Reddy v. Gangula Vijayalakshmi (1 (1983) Divorce and Matrimonial Cases 181).

8. I am in respectful agreement with the views so expressed.

9. However, the court has to exercise its discretion in each case and decide whether the maximum penalty should be imposed or whether a lesser punishment is sufficient. A month's imprisonment for every default is not the rule and sentencing cannot be mechanical. The court has to apply its mind, consider the circumstances of each case and then decide about the quantum of punishment, having due regard to the statutory limit of the maximum punishment of one month for each default. In this case, the court wrongly thought that the maximum punishment should automatically follow forgetting that the court has a discretion in the matter."

14.A similar issue was considered by a Division Bench of this Court in Sunil Kumar v. Jalaja [2007(1) KLT 877], where also, relying on Shahada Khatoon (supra), it was contended that for realisation of the amount due, imprisonment for one month alone was permissible and that imprisonment beyond that was impermissible. Rejecting that contention and also relying on Mohammed kutty (supra), a Division Bench of this Court held thus:

"6. The Supreme Court has thus specifically mentioned in that decision that "for breach of non-compliance with the order of the Magistrate, the wife can approach the Magistrate again for similar relief". That means merely because of undergoing imprisonment for one month provided for sub-s.(3) of S.125, it cannot be stated that a breach will never occur. Therefore, the decision relied on by the petitioner does not support the case of the petitioner fully. This Court in Mohammed Kutty v. State of Kerala (1984 KLT 835) held that "a month's imprisonment for every month's default is the maximum penalty under S.125(3), and not a maximum of a month's imprisonment for the total default. In the light of this pronouncement, the contention of the petitioner cannot be said to be sustainable."

15.We are also fully fortified in our view by the judgment of a Full Bench of the Gujarat High Court in Suo Motu v. State of Gujarat [2009 Crl.L.J.920(F.B.)] where an identical contention was rejected holding thus:

"14. Sub-section (1) of section 125 thus provides for monthly allowance to be paid to the wife, children, mother or father, as the case may be, at such monthly rate as the Magistrate thinks fit. It can thus be seen that the maintenance that the Magistrate awards under section 125(1) becomes payable every month.


Sub-section (3) of section 125 provides for summary procedure for recovery of such maintenance allowance so fixed by the Magistrate, if any person so ordered fails without sufficient cause to comply with the order. It is provided that in such a case, for every breach of the order, the Magistrate may issue 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 including interim maintenance remaining unpaid to imprisonment for a term which may extend to one month or until payment if sooner made. Sub- section (3) of section 125 thus empowers the Magistrate to award sentence upto one month for the whole or part of each month's allowance remaining unpaid. Limitation on the power of the Magistrate to impose imprisonment for a term not exceeding one month, therefore, has to be viewed in the background of the purpose for which such imprisonment is provided. As already noticed, section 125(1) refers to onthly allowance to be fixed by the Magistrate for maintenance of wife, child, father or mother on such monthly rate as the Magistrate thinks fit. Upon failure of a person to comply with such an order, it is open for the Magistrate for every breach of the order to issue warrant for levying the amount due and further to sentence such a person for the whole or any part of each month's allowance remaining unpaid to imprisonment for a term which may extend to one month. To our mind, therefore, the Legislature never intended that regardless of the extent of the default on the part of the husband, the Magistrate can impose sentence only upto one month. True interpretation of section 125(3), in our view, would be that for each month of default in payment of maintenance, it is open for the Magistrate to sentence the defaulting person to imprisonment for a period of one month or until payment if sooner made. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

15. The question can be looked from a slightly different angle. If for each month of default of payment of maintenance, the wife were to file separate applications before the Magistrate, surely, it would be open for the Magistrate to pass separate orders of sentences each not exceeding one month. If that be so, would it not be open for the wife to file one consolidated application for every month's default instead of filing separate application for each month of arrears and in such a situation, would it not be open for the Magistrate to pass one consolidated order of sentence upto a maximum one month for each month of default in payment of maintenance? The answer obviously is in the affirmative as long as the application is made by the wife within one year from the date on which the amount has become due as provided under sub-section (3) of section 125. To our mind, the Apex Court in the case of Shahada Khatoon did not lay down that for every month's default, it is not open for the Magistrate to sentence the defaulting husband for more than one month. It is well settled that the decisions of the Apex Court are not to be interpreted like statutes. In the case of P.S.Sathappan v. Andhra Bank Ltd., AIR 2004 SC 5152, it was held that judgment of the Supreme Court must be read as a whole and the ratio there from is required to be culled out from reading the same in its entirety and not only a part of it.

16. One may notice that the provision of section 125(3) of the Criminal Procedure Code insofar as the same is relevant for our purpose is similar to sub- section (3) of section 288 of the Criminal Procedure Code of 1882 which reads as follows:

"The Magistrate may, for every breach of the order issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any 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."

Criminal Procedure Code 1882 replaced the old Criminal Procedure Code 1861. Similar provisions were made in ection 316 of the Code of 1861. However, there were certain significant differences - Section 316 of the Code of 1861 reads as follows:

"The Magistrate may, for every breach of the order by warrant, direct the amount due to be levied in the manner provided for levying fines; or may order such person to be imprisoned with or without hard labour for any term not exceeding one month."

Comparing the two provisions, it can be seen that in section 488 of the Code of 1882, the Legislature added the words: "may sentence such person for the whole or any part of each month's allowance remaining unpaid". Addition of words "of each month's allowance" are significant. Earlier provisions of section 316 of the Code of 1861 could have been interpreted as providing for the limitation on the power of the Magistrate to impose sentence for a term not exceeding one month regardless of the extent of the default. However, the Legislature made the position clear in the later enactment by adding words "each month's allowance". Modification in the provision was thus to remove a possible confusion. While understanding the existing provisions of section 125(3) which are in pari materia to section 488(3) of the Code of 1882, this important aspect has to be borne in mind. It may be noted that in the Criminal procedure Code of 1898, these provisions were retaining in same terms as in the Code of 1882.

x x x x x x x x x x x x x x x x


22. In the result, question is answered in following terms:

"Magistrate in exercise of powers under section 125 of the Criminal Procedure Code is empowered to sentence a defaulting person for a term upto one month (or until payment if sooner made) for each month of default subject of course to the limitation provided in proviso to sub-section (3) of section 125. In other words, it is open for the Magistrate to award sentence upto 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 will be applicable for each month of default. Magistrate can entertain separate applications from the person entitled to receive such maintenance or even entertain a common application for several months of default and pass appropriate order and, if found necessary, sentence a defaulting person upto a maximum one month for each month of default. In all such cases, however, period of limitation provided in sub-section (3) of section 125 shall have to be borne in mind".

16.Counsel for the petitioners relied on the judgment of the Allahabad High Court in Dilip Kumar v. Family Court, Gorakhpur [2000 Crl. L.J. 3893] where it was held that for default in paying the maintenance, court cannot keep a person in confinement for any period beyond one month and the reasoning of the learned Judge is reflected in paragraphs 4 and 5 of the judgment which reads thus:

"4. From these it is clearly available that the person can be kept under confinement for each months default and the confinement can be only for a period of one month. The subsequent part "until payment if sooner made" further clarifies the situation to the extent that such a husband can be confined to a period of one month even if the default is of more than a month and he can be allowed to come out of jail if the payment is made earlier at any point of time within this period. This very clearly indicates that if the payment is made within this period on any date his confinement will come to an end. The purpose behind this enactment of provision for confinement is to put an end to the sufferings of the wife by compelling the husband to pay the maintenance amount. The Court cannot keep him in confinement any further beyond a period of one month by one stroke of pen in the present case an application was moved by the wife for the recovery of the arrear amount which appears to be for several months.

The Family Judge has passed a consolidated order for 12 months confinement of the applicant, i.e. for the total period of default. The applicant is the husband, who has failed to make payment of the maintenance amount allowed not only to the wife but also to his children. He has failed to discharge this obligation.

The Court is vested with his extensive power with his interest in mind, i.e. compelling the husband to discharge his obligation imposed upon him by an order of a competent Court.
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5. In view of the discussions made above, the order of the learned Family Judge is wholly unsustainable. I am fortified in my view by a latest decision of the Apex Court reported in (1999) 5 SCC 672:(1999 AIR SCW 4880) (Shahada Khatoon v. Amjad Ali). The Apex Court has gone to the extent of saying that the confinement can extend to only one month and if even after the expiry of one month the delinquent husband does not make the payment of arrears then the wife can approach the Magistrate again for a similar relief but the confinement of the husband must be only of one month. In the own words of the Apex Court "By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month". Thus, this latest decision of the Apex Court further lays down a fetter in the exercise of this power by the Judicial Magistrate or the Family Judge to the extent that only a confinement for a period of one month can be passed on an application whether the amount claimed by the wife as arrears is for more than one month or for only a month. In one stroke no composite confinement can be directed by the Court. It very clearly flows from the above decision. This power can be exercised only after a warrant for recovery of the unpaid maintenance allowance is issued by the Court. This warrant is to be executed like any warrant of recovery of fine. This fine can be recovered like any land revenue arrears. Unless that exercise is first adhered to, this power of confinement to jail for his failure cannot be resorted to by any Court."

17. Same view has been taken by a Division Bench of the Andra Pradesh High Court in Abdul Gafaoor v. Hameema Khatoon [(2004) Crl. L.J. 1280] where, referring to Shahada Khatoon (supra), it was held in paragraph 3 as follows:

"3.From bare perusal of this provision, it becomes clear that a person against whom an order under Section 125(3) of the Code is made does not become liable to imprisonment on passing of an order of maintenance, his liability to suffer imprisonment only starts if he fails to respond to a warrant issued under Section 125(3) of the Code for payment of maintenance. A warrant has to be issued under Section 125(3) of the Code for payment of maintenance, when an application is made by the person who has been held entitled to maintenance under Section 125 of the Code. When such a warrant is issued for making payment of maintenance, it has to be levied as the amount due in the manner provided for levying fines and if this warrant is not responded by making the payment, then the Magistrate can order imprisonment and the imprisonment in no case can exceed one month. Therefore, it is immaterial whether there were arrears of 12 months or of any other duration. The material question is whether a warrant under Section 125(3) been issued or not and in case of one warrant issued under Section 125(3) of the Code, there can only be one imprisonment and the maximum imprisonment would be one month. So in case a person chooses to file an application under Section 125(3) of the Code on every successive month on failure to get maintenance, she may get successive orders of imprisonment if the person against whom the warrant is issued fails to make the payment. But if a person chooses to make an application after several months, then again she will be able to get an order of imprisonment on failure to make the payment which will be only a maximum imprisonment of one month. . . . . . . . . . . . . . . . . "

18.We have already held that the principles laid down in Shahada Khatoon (supra) does not lay down any principle irrespective of the number of breaches committed, the Magistrate Cannot sentence the defaulter for imprisonment for any period beyond one month. Secondly, the reasoning adopted by the Allahabad and the Andra Pradesh High Courts ignores the wording of section 125(3), which explicitly provides for imprisonment for every breach of the order which occurs when default in the payment of monthly allowance is committed every month. Therefore, we are unable to endorse the view taken by the Allahabad and Andra Pradesh High Courts. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

19.It was argued before us that the purpose of section 125 is to provide maintenance to the destitute wives, children and parents and that the said purpose would be defeated if the defaulting husbands are allowed to languish in jails and thereby prevented from earning money and pay the maintenance due. In other words, what was contended was that imprisonment once undergone is a sufficient cause to avoid further imprisonment for subsequent breaches. We do concede to the argument that the object of section 125 is to safeguard the interests of destitute wives, children and parents. We also accept that the provision should be liberally construed to the benefit of the section of the society which is intended to be benefited by the provision. This argument is not warranted by the language of the statute and such a view will only defeat the object of the provision. Therefore, we are unable to agree that imprisonment undergone by a defaulter would entitle him to avoid the consequence of further breach or that the imprisonment of a defaulter would deprive him the opportunity to earn money and pay the maintenance due and therefore, the imprisonment should be caped at one month period. The only justification that is recognised by the legislature in Section 125(3) to avoid imprisonment is "sufficient cause". Therefore, what was to be seen is whether imprisonment undergone is a "sufficient cause" to avoid further imprisonment. In fact, the Apex Court considered the question whether, by undergoing imprisonment, the liability is wiped off and has negatived this contention in its judgment in Kuldip Kaur v. Surinder Singh [AIR 1989 SC 232] where, in paragraph 6, it has been held thus:

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 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. The 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. . . . . . . . . . . . . . . "


20.Similarly, in the judgment in Ajithkumar v. Shaima [2009 (3) KLT 452], this Court has held that imprisonment is no substitute for payment. Paragraphs 7 and 8 of the judgment reads thus:

7. The existence of "sufficient cause" for non- payment of maintenance alone can save the person ordered to pay maintenance from a sentence of imprisonment, "Sufficient cause" implies the presence of legal and adequate reasons. The word, "sufficient" means "adequate", "enough", "as much as may be necessary to answer the purpose intended". It embraces something which is sufficient to accomplish the purpose intended in the light of existing circumstances when viewed from reasonable standard of practical and cautious men (See Benarsi Das v. D.D. Cement Ltd. (AIR 1959 Punj. 232). "Sufficient cause" implies no negligence, nor inaction, nor want of bona fides on the part of the person concerned. It involves some cause beyond the control of the party concerned. For a party to invoke aid of Court using the expression "sufficient cause" he must have acted with due care and caution. A party who is guilty of a negligence or inaction cannot successfully plead that he has sufficient cause for such inaction. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

8. Petitioner, it has already been found has sufficient means to pay maintenance to the respondent. He is able bodied and in the absence of proof of cogent reason to hold otherwise it has to be taken that he continues to be capable of earning and thus continues to have the means to pay maintenance. At a time when he was capable of earning and had a job also even according to him, he failed to comply with the order for payment of maintenance without "sufficient cause". He then had no case that his failure to comply with the order was due to "sufficient cause". That resulted in his imprisonment. That imprisonment was due to his own fault in not paying the maintenance. He cannot, in my view take his fault and the consequent imprisonment as a ground to refuse payment of maintenance due for the period during which he was in prison. His imprisonment on account of his own fault is not a "sufficient cause" as understood in sub-s.(3) of S.125 of the Code. He continued to have "sufficient means" notwithstanding his previous imprisonment. The decision of the Madhya Pradesh High Court in Durga Singh Lodhi v. Prembai & Ors. (2009 (3) Crimes 90) supports this view. ln that case for non-payment of maintenance the husband was sentenced to imprisonment. He challenged the order on the ground that he had no property. Division Bench considered the question whether a person against whom there is an order under S.125(1) of the Code with no property whatsoever could be sentenced to imprisonment under sub-s.(3) of S.125 of the Code. The Court held that that notwithstanding that husband had no property whatsoever,

".......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."

The principles laid down in these judgments make it clear that imprisonment undergone is not a sufficient cause to avoid further imprisonment. If that be so, this contention raised by the counsel also does not merit acceptance.

21.For the aforesaid reasons, we approve the principles laid down by this Court in Sundaran v. Sumathi [2006 (3) KLT 725]. The reference is answered accordingly. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

22.We place on record our deep appreciation and gratitude to Sri.Raja Vijayaraghavan, learned Amicus Curiae and other counsel who have assisted us in these cases. The matters will be posted before the appropriate Bench for disposal in accordance with law. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/


Sd/-

ANTONY DOMINIC, Judge.

Sd/-

P.D.RAJAN, Judge.

kkb.



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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist