Thursday, May 29, 2014

Wife can comeback claim maint paymnt after many years & case of hubby who hasn't paid 20 years!!


notes
**
* Wife obtained Sec 125 decree of Rs 300 p.m. maintenance in 1993, YEAH 21 YEARS AGO !!
* husband did NOT PAY
* trail court sentenced hubby to imprisonment in 1998 for non payment of sec 125 maintenance
* another application for default from 1993 to 2002 was filed by wife
* while deciding on the second application, high court held that arrears can be collected only for 1 year
* supreme court set aside the HC view in 2013 and said hubby has to pay arrears from 1993 ..i.e. for the full 20 years
* SC distinguished between arrest and enforcement of maintenance and the satisfaction or payment of maintenance.
* Arrest only for non payment of the last 1 years dues , howevver other means of recovery possible for all old due
* quoted by the SCC "... " 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 "....."


*****************

Quoting the honourable SC : "...........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. ........"



*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
***********************************************************************************
CASE FROM SUPREME COURT / JUDIS / INDIAN KANOON WEB SITE
***********************************************************************************



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 ... Respondent(s)

J U D G M E N T

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. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

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.  http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

3. We have heard learned counsel for the parties.  http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

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. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

5. The decision of this Court in Kuldip Kaur v. Surinder Singh and Anr. 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 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:.......... ...." http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

6. In another decision of this Court in Shantha alias Ushadevi and Another v. B.G. Shivananjappa 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.. 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). http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

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 granted by the learned trial court, as has been held by the High Court. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

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 7 th of October, 2013 and thereafter continue to pay the monthly maintenance on or before the 7 th of each successive month. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

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. 
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
The appeal is allowed.

..........................................................J.

[SUDHANSU JYOTI MUKHOPADHAYA]

..........................................................J.

[RANJAN GOGOI]

NEW DELHI

SEPTEMBER 27, 2013




http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

***********************************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
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