IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 3RD MARCH 2008 / 13TH PHALGUNA 1929 WP(C).No. 19870 of 2006(M) -------------------------- CC.5/2004 of J.M.F.C.-I, PERINTHALMANNA .................... PETITIONER: ------------ RAYINKUTTY, S/O. KOOTHUMADATHIL KUNHISOOPY, KOOTHUMADATHIL HOUSE, PANG POST, KADUNNAMUTTY, MALAPPURAM. BY ADV. SMT.K.V.RASHMI SRI.ARUL GEORGE SCARIA RESPONDENTS: ------------- 1. THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. KADEEJA, D/O. AREEKADAN KUNHEN, AREEKADAN HOUSE, KADUNNAMUTTY, MALAPPURAM. 3. THE VILLAGE OFFICER, KURUVA VILLAGE, PERINTHALMANNA. 4. THE DISTRICT COLLECTOR, MALAPPURAM. BY ADV. SRI.P.SAMSUDIN (FOR R2) GOVERNMENT PLEADER ADV.SRI.GIKKU JACOB (FOR R1, R3 & R4) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` W.P.(C) No. 19870 OF 2006 M ```````````````````````````````````````````````````` Dated this the 3rd day of March, 2008 J U D G M E N T Sufferance of the default sentence under section 3 (4) of the Muslim Women (Protection of Rights on Divorce) Act - will that wipe off the liability for payment of amounts due under section 3 of that Act? This is the crucial question for consideration in this case. Petitioner had suffered an order under section 3 of the Muslim Women (Protection of Rights on Divorce) Act(hereinafter referred to as 'the Act'). He was directed to pay a total amount of Rs.2,25,000/- under various heads. The petitioner did not pay that amount. The learned Magistrate proceeded to take steps under section 3(4) of the Act to recover the amount. The proceedings against the petitioner was registered by the learned Magistrate as a calendar case and a judgment was pronounced in the said calendar case sentencing the petitioner under section 3(4) of WPC.19870/06 : 2 : the said Act to undergo imprisonment for one year or until the payment of the amount of Rs.2,15,000/- was made. The petitioner underwent the sentence of rigorous imprisonment for one year, it is submitted. But, after the petitioner returned from the prison, the Magistrate was informed that the petitioner was having in his possession properties belonging to him and accordingly the learned Magistrate is now proceeding with steps to recover the amount due under section 3 of the Act from the petitioner by resort to recovery proceedings under section 421 Cr.P.C. 2. The petitioner has come to this Court with a grievance that the petitioner having already undergone the maximum sentence prescribed under section 3(4) of the Act is not liable now to pay the amount and the steps taken are all without jurisdiction. The petitioner prays that appropriate orders may be passed to restrain the Magistrate and the recovery authorities from proceeding further with the steps for recovery under section 3(4) of the Act read with 421 Cr.P.C. WPC.19870/06 : 3 : 3. The question whether a person who has already undergone the sentence of imprisonment for non-payment of amounts due is liable to face further proceedings for recovery has been considered by the Supreme Court in the decision in Kuldip Kaur Vs. Surinder Singh [AIR 1989 SC 232]. Two Judge Bench of the Supreme Court has observed thus in paragraph 6 of the said judgment : “ 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 WPC.19870/06 : 4 : 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 WPC.19870/06 : 5 : 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. Common sense 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 WPC.19870/06 : 6 : 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.” (emphasis supplied) 4. In the light of the very clear pronouncement of the Supreme Court that the undergoing of the default sentence of imprisonment imposed under section 125(3) cannot efface the liability and such suffering of sentence cannot be reckoned as equal to the discharge of the liability, the petitioner’s grievance cannot also obviously be entertained. The petitioner is now shown to be having in his possession properties belonging to him. If within a period of six years WPC.19870/06 : 7 : from the date on which the amount became due the petitioner has not paid the amount, under section 70 of the IPC the amount can be recovered under section 421 Cr.P.C. The fact that the petitioner has undergone the sentence can only mean that he cannot again be proceeded under section 3(4) of the Act and sentenced to imprisonment. But, in any view of the matter, if the amount can be recovered by resort to the procedure for recovery of the amount under section 421 Cr.P.C. the decision in Kuldip Kaur(supra) is authority for the proposition that such recovery can be effected. The decision in Saji Kumar Vs. Soman Pillai [2006 (3) KLT 679] does also support this contention. The petitioner cannot claim absolution from liability to pay and discharge the amount merely because he has undergone the sentence imposed on him under section 3(4) of the Act. Of course in the light of the decision in Nityanandan Vs. Radhamani [1980 KLT 537] such instances shall be rare as effort to recover must have been exhausted before the order imposing the default sentence is WPC.19870/06 : 8 : passed. But in a rare case where such recovery is found to be possible, even after the default sentence is undergone (either because of omission/suppression at earlier stages or by subsequent acquisition) the courts must pursue the efforts for recovery. 5. The learned counsel for the petitioner submits that a distinction must be drawn between the amounts payable under section 125 Cr.P.C. and the amounts that are liable to be paid under section 3 of the Act. The argument of the learned counsel is that whereas section 125 Cr.P.C. speaks of payment of maintenance every month, section 3 of the Act contemplates one time payment of the entire amount. 6. That distinction cannot in any view of the matter, help the petitioner to claim absolution from liability. A direction for one time payment must be enforced with greater insistence and strictness. Any attempt to avoid payment of such liability must be frowned upon as the effect, so far as beneficiary of the order is concerned, will be graver and of WPC.19870/06 : 9 : greater consequence. In this view of the matter, I am unable to agree that the dictum in paragraph 6 of Kuldip Kaur(supra) must be restricted in its application to monthly payments under section 125 Cr.P.C. and not to one time payment under section 3 of the Act. Such a distinction does appear to be totally artificial and not in tune with the purpose that section 3 and section 3(4) have to achieve. The observations in paragraph 6 extracted above, according to me, do apply with equal, if not greater, rigor to the claim for recovery under section 3(4) of the Act. 7. A contention is raised that the learned Magistrate had unnecessarily resorted to the procedure of registering a calendar case in proceedings under section 3(4). To my mind that objection appears to be without any merit as the said order passed in C.C.5/04 dated 16.11.04 has now become final without challenge and the petitioner has already undergone the sentence imposed voluntarily. Attempt to pick holes in the said order is found to be without any merit. Such WPC.19870/06 : 10 : attempt is unnecessary also now. I am not, hence, proceeding to consider the said contention in any greater detail. 8. It follows from the above discussions that the attempt to recover the amounts due under the order in MC.17/99 even after the petitioner has undergone the sentence imposed under section 3(4) is absolutely justified and the same does not deserve any interference. This writ petition is, in these circumstances, dismissed. (R.BASANT, JUDGE) aks