SMT. KULDIP KAUR

SURINDER SINGH AND ANR.

NOVEMBER. 3, 1988

[M.P. THAKKAR AND S. NATARAJAN, JJ.)

Code of Criminal Procedure, 197.3-Sections 125 to 128-Distinction to be made between mode of enforcement and mode of satisfaction of maintenance order-Sentencing the person to jail is ti mode of enforcement and not a mode of satisfaction of the liability.

Code of Criminal Procedure, 1973-Section 125-0rder for maintenance of wife and child passed-Whether detaining husband in jail for failing to pay arrears of maintenance would be tantamount to satisfaction of the order of maintenance even though arrears of maintenance allowance remain unrecovered in fact-Held no. Actual pay- D ment must be made for satisfaction of the order.

The appellant was awarded maintenance for herself and her son to be paid by respondent No. I, 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 B 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 R 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 bas 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 bas fallen in arrears on the other. Sentencing a person to jail is a 'mode of enforcement'. It is n.ot 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 A 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 he strange to hold that B 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 sent ence 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 i)conomic wherewithal. Neither the neglected wife nor the neglected C child can live without funds for purchasing food and the essential arti cles to enable them to live. Instead of providing them with the funds, no useful purpose would be served by sending the husband to jail. Sentenc ing to jail is the means for achieving the end of enforcing the :oriier -'hy recovering the amount of arrears. It is not a mode of discharging llabi D lity. The order for monthly allowance can be discharged only upon the monthly allowance being recovered. [767BG I

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 4 of 1983.

From the Judgment and Order dated 29. 7. 1982 of the Delhi High E 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 G 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 H

faVo\if evefi though the artears of niaihienance allowance remain untecovered iii fact) is not capable of being answered against the peiitiOi\er.

The Metropolitan Magistrate (Shri L.D. Malik) in his order dated July 4; 1981 recorded a dear 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 avermcnts 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 anything so as to support the allegations of the respondent in his reply."

Ifi the Mritext of this firiding 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 ehforceinertt of the order of maintenance dated 17. l.1982 the hilsband wl\s sefitehced to suffer simple imprisonment for one month plirs\iant !o the order dated i 7 .1. 1982 of the Metropolitan Magistrate

(Shri L.b. Malik). The operative portion of the order reads as under:

"The J.D. Surinder Singh, s/o Bhagwan Singh is accord- liigly 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 files Pe!lding are disposed of accordingly except that paymen\ pf RAOQ re!Ilains to be paid to D.H. who shalt appear personally fpr ob!aining the amount." ·

The wife prayed for recovery of the arrears, whereupon the Metropolitan Magistrate rejected her prayer on the ground that tiJe 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 jt 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 Conrt 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 mipor 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 cn1mbs 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 Conrt by way of a Revisional Application. Eventhough no support was sought from any provision of law and it was assumed that the claim for recovery stood satisfied !!POI! the husl:!and !)eing sent to j;!il, th~ High Court rejected the Revisilmal Application summarily withP1!! a sPei\' ing order, on 29th Jµly, 1982, It i& thjs order whicl) has Peen suPfoQte!! to appeal by special leave, ·

We fail to comprehen!! how suclJ an imP!>rtam qYes\iol) risi!lg in the context of the petition preferred by a hlp!ess W9111al! c!>ulcl !tave been summarily rejected by the High Court by a 11on-speai\iqg ofQef, To say the least of it, it betrays total lack pf 5e11sitivitiPIJ thi Part of

the High Court to the plight of a helpless womn. Were it not so, tile High Conrt woµld have atleas\ passecl a spe!li\ing !>filer 1J.llf9!9in!! the H

rational process which made the High Court feel helpless in helping a 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

satisfied 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 be 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 context 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 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 monJh 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 H code in itself requires to be comprehended. It deals with three ques-

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tions, viz.: ( 1) adjudication as regards the liability to pay: monthly A 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 C 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 D 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 E 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 F 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 itselL that the liability arising under the order for maintenance would G 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 sendmg 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 H.

i~ ppsi\ll~, T!u1t is lh!! reson why we set asi<le the order under appeal A ancl p9sse\i I\!! qrger in the fql1qwi11g tef!ns:

"Heard both t!ie sids,

T!te llPPe;!l is 1\llgwed, The !?HJ.er pasS, ed by the learned Magistrnte as cgnfinllec! by the J1igll ~011rt in exercise of its revlsio11al jurisqic\ioq to t!ie effet that the amoµnt of !Ooilth!y l\lfowance. pa.yab!e u.µder Section 125 of the Cgde

of CrillJjnal Procedure is wiped out and js not recoverable any IOOre by reason of t!ie fact that respondent No. 1, suriqder SingiJ, Wl!S. sent to jail in exercise of the powers µncler Section 125 of the Code of Criminal Procedure is set aside. 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 t!te amount is still recoverable notwithstanding the fact that the respondent No, 1 husband who is liable to pay he mpnthly 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 Pl!rticµli!r gse is QP!!Qef!leQ, by QO.nSel)t of parties, we pass !he following orge.r in re.gar!! to future payments with effect

frPIO 15th Aµu.s(, 19,86. .

We !!iret tiiat ResPonde.l!t No. l, Surinder Singh shaJI pay

Rs,'.?7~ (R~)09 for the wife and Rs. 75 for the child) as and \ly Wl\Y pf mlli'!le1:1ance tg the appellant Smt. Kulqip Kaur

co!lllll~!!cing from A11g11st 15, 198(j, The amount qf Rs.275

lil!ll be Pai<J ]:Jy the f5t!l of every su.cceeging mqn\Ii, Qn foilyre !9 pay ai1y mo!l!l!lY allow, ince fqr i!ny month herel!fter cm the parf()f fe§PR!Jdent Nq, 1, Surinder Siqgh, the l!'!lrne\i Meifgpp]itan Jitlagistrnte shall jssue a warrant for his arres\, c; mse him to be arrested and put in jail for his failure to comply with this Coures order and he shall not be relel\sed ti!l he makes the payment.

With regard to the arrears which have become due till Augu.st 1?, i91!6, lea.med coµpsel fpr the appellant states Iha! !i'!Ying re.garc! tq !he fi!Ct !ha! n:sponde!!t l'fo, 1, has

l!fee9 (g "the ·fqresaiq consent order, the appellant will

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H.S.K.

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SMT. KULDJP KAUR v. SURINDER SINGH ITh!AKKAR, J.] 769

not apply for the respondent being sent to jail under Sec- A tion 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."

Appeal allowed.