Smt. Kuldip
Kaur Vs. Surinder Singh & Anr [1988] INSC 343 (3 November 1988)
Thakkar,
M.P. (J) Thakkar, M.P. (J) Natrajan, S. (J)
CITATION:
1989 AIR 232 1988 SCR Supl. (3) 762 1989 SCC (1) 405 JT 1988 (4) 412 1988 SCALE
(2)1329
ACT:
Code
of Criminal Procedure, 1973-Sections 125 to 128 Distinction to be made between
mode of enforcement and mode of satisfaction of maintenance order-Sentencing
the person o jail is a mode of enforcement and not a mode of satisfaction of
the liability.
% Code
of criminal Procedure, 1973-Section 125-Order for maintenance of wife and child
passed-Whether detaining husband in jail for failing o pay arrears of
maintenance would be tantamount to satisfaction of the order of maintenance
even though areas of maintenance allowance remain unrecovered in fact-Held no.
Actual payment must the made for satisfaction of he order.
HEAD NOTE:
The
appellant was awarded maintenance for herself and her son to be paid by
respondent No. 1, her husband, under Section 125 of the Code of Criminal Procedure,
1973, by the Metropolitan Magistrate. The husband did not pay the maintenance
allowance and it fell into arrears. The appellant moved an application for
execution of the order for maintenance. In the course of enforcement of the
order of maintenance the husband was sentenced to suffer simple imprisonment
for one month by the Metropolitan Magistrate.
The
appellant again prayed for recovery of the arrears. The Metropolitan Magistrate
rejected her prayer on the ground that the claim for arrears stood satisfied
upon the husband having been sent to jail. The appellant filed a revisional
application in the High Court. The High Court rejected the revisional
application summarily without a speaking order.
Hence this
appeal by special leave.
Allowing
the appeal, this Court,
HELD:
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 maintenance
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 PG NO 762
PG NO 763 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 not to wipe out the liability which he has
refused to discharge. be it also realised that a person ordered pay monthly
allowance can be sent to jail on if he fails pay monthly allowance 1without
sufficient cause' comply with the order. I 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 revocery 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 b 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 he 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 no a mode of discharging liability.
The order for monthly allowance can be discharged only upon the monthly
allowance being recovered. [767B-G]
CRIMlNAL
APPELLATE JURISDICTION Criminal Appeal No 4 of 1983.
From
the Judgment and Order dated 29.7.1982 of the Delhi High Court in Criminal
Revision No 187 of 1982.
Anand Prakash
and V. B. Saharaya for the Appellant.
Arvind
Kumar, Mrs Laxmi Arvind. Ms K. V Lalitha and K. B. Chatterjee for the
Respondents.
The
Judgment of the Court was delivered by THAKKAR, J. We have yet to come across a
case of a wife wronged by her husband and a child wronged by his father who had
to suffer also at the hands of the Court For, while the Trial Magistrate has
disposed of the matter in a very cursory manner taking a thoroughly untenable
and unjust view, the High Court has rejected the Revisional Application
summarily Both the Courts have done so notwithstanding the fact that the point
involved (whether detaining the husband in jail for failing to pay the arrears
of maintenance would be tantamount to satisfaction of the order of maintenance
passed in her favour even though the arrears of maintenance PG NO 764 allowance
remain unrecovered in fact) is not capable of being answered against the
petitioner.
The
Metropolitan Magistrate (Shri L.D. Malik) in his order dated July 4, 1981 recorded a clear finding that the
husband was guilty of cruelty in the context of the demand for dowry. He
observed:
"I
have heard the attorney for the petitioner and carefully examined the evidence
produced by the petitioner and find that the evidence on record is sufficient
to show that the petitioner was maltreated and neglected by the respondent. The
evidence on record indicates that the petitioner was maltreated and neglected
by the respondent.
The
evidence on record indicates that the petitioner was maltreated on account of
less dowry and was not looked after properly during the course of her advance
stage of pregnancy The evidence also indicates that the respondent did not
bother about the petitioner gave birth to a male child The statements of the
witnesses which include that of the petitioner and her father are unrebutted by
any evidence on behalf of the respondent and the averments of the respondent in
his reply are unsupported by any evidence since the respondent did not produce
any evidence having been proceeded ex parte on account of his absence The
cross- examination of the witnesses of the petitioner also does not reveal any
thing so as to support the allegation of the respondent in his reply. " In
the context of this finding a sum of Rs 200 to the wife and Rs 75 to the son
were awarded by the aforesaid order.
The
respondent-husband was in arrears to the tune of Rs 5090. The wife moved an
application for execution of the order for maintenance in order to recover the
arrears of maintenance. In the course of enforcement of the order of
maintenance dated 17.1.1982 the husband was sentenced to suffer simple
imprisonment for one month pursuant to the order dated 1.1.1982 of the
Metropolitan Magistrate (Shri L.D. Malik). The operative portion of the order
reads as under "The J.D. Surinder Singh, s/o Bhagwan Singh is accordingly
sentenced to S.I. for one month and shall be released if he makes payment of
Rs.5090 as maintenance due from him upto 16.1.82. Both the execution tiles pending
are PG NO 765 disposed of accordingly except that payment of R.400 remains to
be paid to D H. who shall appear personally for obtaining the amount.
The
wife prayed for recovery of the arrears, whereupon the Metropolitan Magistrate
rejected her prayer on the ground that the claim for arrears stood satisfied
upon the husband having been sent to jail. Says the Metropolitan Magistrate:
"The
J.D. was sentenced to Jail for one month and the order of the court dated 17
.1.82 are material to be mentioned here vide which it has been decided that the
J D was sentenced for non-payment of maintenance allowance Rs.5090 due from him
upto 16.1.82. The J D remained in custody for one month and as per orders dated
17.1.82, sum of Rs 5090 stands satisfied. As per orders of the court, the J. D.
was directed to pay Rs 400 remaining amount. This amount was paid on 19.1.82 by
the J. D. to the decree-holder." The wife who wanted the maintenance
amount for maintaining herself and the minor child approached the High Court by
way of a revisional application. Naturally the need of the wife for a few
crumbs of bread for herself and spoonfuls of milk for her minor son were not
satisfied by the imprisonment of the husband for one month. These needs would
be satisfied only upon the economic means for purchasing the crumbs of bread
and spoonfuls of milk being provided by effecting the recovery of the
maintenance amount. The learned Metropolitan Magistrate having failed to do so.
the wife approached the High Court by way of a Revisional Application. Even
though no support was sought from any provision of law and it was assumed that
the claim for recovery stood satisfied upon the husband being sent to jail, the
High Court rejected the Revisional Application summarily without a speaking order,
on 29th July, 1982. It is this order which has been
subjected to appeal by special leave.
We
fail to comprehend how such an important question arising in the context of the
petition preferred by a helpless woman could have been summarily rejected by
the High Court by a non-speaking order. To say the least of it, it betrays
total lack of sensitivity on the part of the High Court to the plight of a
helpless woman. Were it not so, the High Court would have at least passed a
speaking order unfolding the rational process which made the High Court PG NO
766 feel helpless in helping a helpless woman and a helpless child. The legal
position may not be examined. Section 125 of the Code of Criminal Procedure
Code (hereinafter referred to as the Code) provides for an order for
maintenance to wives, children and parents. A Magistrate upon being about the
proof of negligence or refusal on the part of the person from whom monthly
allowance for the maintenance of the wife, child, father or mother as the case
may be, is due, upon being satisfied about the fact that the person has
sufficient means, may pass an order for monthly allowance under sub-sections
(1) and (2) of Section 125 of the Code.
Section
128 of the Code provides for enforcement of such an order of maintenance passed
by a competent Magistrate. The section reads as under:
"128.
Enforcement of order of maintenance---A copy of the order of maintenance shall
be given without payment to the person in whose favour it is made, or to his
guardian, if any, or to the person to whom the allowance is to he paid; and
such order may be enforced by any Magistrate in any place where the person to
whom the allowance is to be paid; and such order may be enforced by any
Magistrate in any place where the person against whom it is made may be, on
such Magistrate being satisfied as to the identity of the parties and the
non-payment of the allowance due." Sub-section (3) to Section 125 deals
with the problem arising in the of a person against whom order for maintenance
allowance has been made failing without sufficient cause to comply with the
order. It deserves to be reproduced to the extent material for the present
purposes:
"
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 finest
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 or until payment if sooner made.
The
scheme of the provisions embodies in Chapter IX of the Code comprising of
Sections 125 to 128 which constitutes a complete code in itself requires to be
comprehended. It deals with three questions, viz.: (1) PG NO 767 adjudication
as regards the liability to pay monthly allowance to the neglected wife and
child etc., (2) the execution of the order on recovery of monthly allowance,
and (3) the mode of execution of an order for monthly allowance.
Now,
one of the modes for enforcing the order of maintenance allowance with a view
to effect recovery thereof is to impose a sentence of jail on the person liable
to pay the monthly allowances.
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 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 commence 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
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 PG
NO 768 why we set aside the order under appeal and passed an order in the
following terms:
"Heard
both the sides.
The
appeal is allowed. The order passed by the learned Magistrate as confirmed by
the High Court in exercise of its revisional jurisdiction to the effect that
the amount of monthly allowance payable under Section 125 of the Code of
Criminal Procedure is wiped out and is not recoverable any more by reason of
the fact that respondent No. 1, Surinder Singh, was sent to jail in exercise of
the powers under Section 125 of the Code of Criminal Procedure is set . In our
opinion, respondent No. 1, husband of appellant, is not absolved from his
liability to pay the monthly allowance by reason of his undergoing a sentence
of jail and the amount is still recoverable notwithstanding the fact that the
respondent No. 1 husband who is liable to pay he monthly allowance has
undergone a sentence of jail for failure to pay the same. Our reasons for
reaching this conclusion will follow.
So far
as the amount of monthly allowance awarded in this particular case is
concerned, by consent of parties, we pass the following order in regard to
future payments with effect from 15th August, 1986.
We
direct that Respondent No 1, Surinder Singh shall pay Rs.275 (Rs.200 for the
wife and Rs 75 for the child) as and by way of maintenance to the appellant Smt
Kuldip Kaur commencing from August 15, 1986. The amount of Rs 275 shall be paid
by the 15th of every succeeding month. On failure to pay any monthly allowance
for any month hereafter on the part of respondent No 1, Surinder Singh, the
learned Metropolitan Magistrate shall issue a warrant for his arrest, cause him
to be arrested and put in jail for his failure to comply with this Court's
order and he shall not be released till he makes the payment.
With
regard to the arrears which have become due till August 15, 1986, learned
counsel for the appellant states that having regard to the fact that respondent
No 1, has agreed to the aforesaid consent order, the appellant will PG NO 769
not apply for the respondent being sent to jail under Section 125 of the Code
of Criminal Procedure but will reserve the liberty to realize the said amount (Rs
5090 plus the difference between the amount that became due and the amount
actually paid under the interim order) under the law except by seeking an order
for sending respondent No. 1 to jail.
The
appeal will stand disposed of accordingly ." H.S.K. Appeal allowed.
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