Report No. 132
3.9. Recovery of the monthly allowance awarded by way of maintenance from the person held liable to pay maintenance.-
The suffering of the wife, child or parent needing maintenance is in no way diminished either by awarding an appropriate amount or by awarding the said amount expeditiously if the claimant is unable to recovering the amount or has to face almost insurmountable difficulties for recovering the same. Chapter IX of the Code of Criminal Procedure, 1973 as at present does not take sufficient care of this aspect. There are a number of deficiencies, anomalies, ambiguities and loopholes, which have been identified in the course of the working of the relevant provisions, which call for attention. The claimant who has successfully secured an order for payment of monthly allowance by way of maintenance faces a host of problems, namely:-
(1) The awardee is required to approach the court to enforce the order for maintenance every month if an intransigent person refuses or neglects to make payment regularly. The awardee has to engage an advocate, approach a court, incur expenses and invest time in starting a fresh round of litigation for the purpose of recovery of the allowance awarded to him or her and it is not only once that the awardee has to face such a situation. The same situation has to be faced as often as the person held liable to pay the allowance makes a default.
It is unlike the problem of a decree-holder in a civil matter whose decree would be satisfied by approaching the executing court in one proceeding. The monthly allowance being payable from month to month, a default may be made every month or every couple of months or on a number of occasions periodically. And every time a proceeding has to be initiated to recover the amount which has fallen in arrears, which entails unbearable time-cost and money-cost to the awardee who is already in distress. The awardee cannot be made to spend a part of his or her life in running to the advocate and the court indefinitely and on numberless occasions. This is one of the most vital issues which demands an appropriate solution.
(2) If, in the situation in which the awardee is placed, he or she is unable to approach the court within one year of the last default, the claim of the awardee becomes unenforceable by virtue of the first proviso to section 125(3) which reads:
"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.".
(3) The awardee wife can be obliged to face another round of litigation if the husband who has been held liable to pay the allowance makes an application to the court that he is prepared to maintain his wife on condition of her living with him and that she refuses to live with him in the context of the second proviso to sub-section (3) of section 125, which says:
"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."
Thus, almost insurmountable hurdles are placed in the path of the awardee which virtually tantamount to conferring on such person a mere paper right which is, in practice, worth very little.