District Judge cannot invoke PWDVA on execution of maintenance amount

IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA

DATED THIS THE 30TH DAY OF JULY 2013
BEFORE: THE HON’BLE MR. JUSTICE V. SURI APPA RAO
CRL.P.NO.15214 OF 2013

BETWEEN

NARAYAN REDDY S/O PENTA REDDY
AGE:42 YEARS
OCC. AGRICULTURE LABOUR R/O VILLAGE NAGUR TQ & DIST. BIDAR … PETITIONER

(BY SRI. A SYED HABEEB, ADVOCATE)

AND

1. LAXMI BAI W/O NARAYAN REDDY
AGE: 41 YEARS
OCC. HOUSEHOLD & LABOUR R/O VILLAGE BAROOR TQ & DIST. BIDAR

2. SAPNA D/O NARAYAN REDDY
AGE: 22 YEARS,
OCC. HOUSEHOLD, R/O VILLAGE BAROOR TQ & DIST. BIDAR

3. SARITA D/O NARAYAN REDDY
AGE: 20 YEARS
OCC. HOUSEHOLD,R/O VILLAGE BAROOR TQ & DIST. BIDAR … RESPONDENTS

(SRI. ANANTH S. JAHAGIRDAR, ADV.

FOR SRI. AMEET KUMAR DESHPANDE, ADV. FOR R1; R2 & R3 ARE SERVED)

THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SETASIDE THE ORDER DATED 20.3.2012 PASSED BY THE ADDL. JMFC-II, AT BIDAR IN CRL.MISC.NO: 118/2004 AND THE IMPUGNED ORDER DATED 28.12.2012 PASSED BY THE PRINCIPAL SESSIONS JUDGE, BIDAR, IN CRL. REVISION PETITION NO: 21/2012, IN THE INTEREST OF JUSTICE AND EQUITY.

THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING :

ORDER

This Criminal Petition is filed challenging the order dated 28.12.2012 passed in Criminal Revision Petition No.21/2012 by the Principal Sessions Judge, Bidar, whereby the learned Sessions Judge dismissed the petition filed by the petitioner and directed him to pay Rs.10,000/- towards cost of the petition and further directed to pay interim maintenance at the rate of Rs.5,000/- per month to the first respondent in addition to the maintenance awarded by the J.M.F.C., Bidar.

2. Aggrieved by the aforesaid order passed by the learned Principal Sessions Judge, Bidar, the petitioner who is husband of the first respondent and father of respondents 2 and 3, filed this petition to set aside the impugned order dated 28.12.2012 and also the order dated 20.03.2012 passed by the learned Addl. JMFC-II, Bidar.

3. The respondents filed Criminal Misc. No.4/1999 invoking the provisions of Section 125 of Cr.P.C., claiming maintenance. The learned JMFC allowed the petition and awarded the maintenance at the rate of Rs.500/- each to the respondents. When the petitioner failed to pay the maintenance amount awarded to the respondents, they have filed Criminal Misc. No.118/2004 for recovery of arrears of maintenance of Rs.18,000/-. The learned JMFC passed an order dated 30.06.2009 and when the petitioner appeared before the Court and failed to pay the amount of maintenance he was remanded to judicial custody for a period of one month in lieu of payment of arrears of maintenance. After he served the sentence of one month, he was released by the JMFC on 30.07.2009.

4. The respondents again filed an application in Criminal Misc. No.118/2004 under the provisions of Section 125 (3) of Cr.P.C., to issue arrest warrant against the petitioner. But the learned JMFC, by an order dated 30.07.2009 declined to issue arrest warrant on the ground that the petitioner has already undergone imprisonment for a period of one month. However, the learned JMFC issued arrest warrant again under Section 125 (3) of Cr.P.C. on 20.03.2012. Aggrieved by the order passed by the learned JMFC, the petitioner filed Criminal Revision Petition 21/2012 before the Principal Sessions Judge, Bidar, challenging the validity and correctness of the impugned order dated 20.03.2012 in issuing arrest warrant again under the provisions of Section 125 (3) of Cr.P.C.

5. After hearing both the parties learned Principal Sessions Judge, dismissed the Revision Petition filed by the petitioner and passed the above impugned order directing the petitioner to pay costs of Rs.10,000/- and Rs.5,000/- per month towards interim maintenance to the first respondent in addition to the maintenance awarded by the JMFC-II, Bidar.

6. Aggrieved by the aforesaid order passed by the learned Principal Sessions Judge, the petitioner filed this petition on the ground that the Sessions Judge has no jurisdiction to pass order against the petitioner under the Protection of Women from Domestic Violence Act, and he has no jurisdiction to pass interim maintenance at the rate of Rs.5,000/- per month and imposition of costs of Rs.10,000/- is unsustainable.

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7. Learned counsel for the petitioner further submits that once the petitioner served sentence of imprisonment for one month as provided under Section 125 of Cr.P.C., the J.M.F.C. is not justified in passing the arrest warrant against the petitioner for securing his presence and the learned J.M.F.C. ought to have proceeded to pass order under Section 125 (3) of Cr.P.C., for recovery of maintenance amount by following the procedure laid down under Section 421 of Cr.P.C.

8. Per contra, learned counsel for the respondents submits that the petitioner failed to pay the meager amount of maintenance at the rate of Rs.500/- per month to each of the respondents. Therefore the learned JMFC-II has rightly passed an order remanding the petitioner to judicial custody for 30 days in lieu of payment of arrears of maintenance. Though, the petitioner has served the sentence of imprisonment for a period of 30 days he has not paid the maintenance amount awarded to the respondents. Therefore, the respondents again filed an application under Section 125 of Cr.P.C. for recovery of arrears of maintenance and that the trial Court was justified in issuing arrest warrant against the petitioner and that the Sessions Judge also justified in awarding costs of Rs.10,000/- and interim maintenance at the rate of Rs.5,000/- per month by following the procedure provided under the Protection of Women from Domestic Violence Act. Therefore there are no grounds to interfere with the orders passed by the learned JMFC-II, Bidar and the learned Principal Sessions Judge, Bidar.

9. In support of his contention, learned counsel for the petitioner relied on a decision of Hon’ble Supreme Court in the case of Shahada Khatoon and others v. Am jad Ali and others reported in 1999 CRI.L.J.5060.

10. The learned Sessions Judge, passed the impugned order by following the aforesaid decision relied upon by the learned counsel for the petitioner and observed that the order passed by the trial Court is not the order for expanding the period of sentence for more than one month and that the petitioner was released from the custody on 30.07.2009. Therefore the question of continuation of sentence of imprisonment for more than one month does not arise. Admittedly, in the instant case, the learned JMFC, passed an order dated 20.03.2012 stating that the petitioner by not paying the maintenance has committed default and hence it is necessary to issue warrant against the petitioner for securing his presence for payment of balance amount. It is thus, clear that for the very same amount of arrears of maintenance of Rs.18,000/- was claimed in Criminal Misc.No.118/2004. The respondents filed another application under Section 125 (3) of Cr.P.C., for issuing the arrest warrant against the petitioner.

11. The learned Sessions Judge, rightly observed that after the petitioner was released on 30.07.2009, he was not further sentenced to undergo imprisonment for another one month or more than one month. The period of detention came to an end after one month and the question of imposing sentence for more than one month does not arise. Hence, the order dated 20.03.2012 passed by the learned JMFC cannot be treated as an order passed in continuation of the order dated 30.06.2009 and it is a fresh order subsequent to default of payment of maintenance.

12. Learned counsel for the petitioner further placed reliance on a decision in the case of Dilip Kumar s/o Kirtmukh v. Family Court, Gorakhpur and others reported in 2000 CRI. L. J. 3893 wherein the Allahabad High Court held that a person who fails to make payment of maintenance amount can be kept under confinement for each month’s default and the confinement can be only for a period of one month.

13. In the case of Shri Kallappa v. Smt. Yallaubai reported in 2013 (1) KCCR 471, this Court also observed that though arrears of maintenance claimed for 29 months maximum sentence cannot exceed 30 days and inference could be drawn under the provisions of sub- section (3) of the Section 125 of the Cr.P.C., that if successive applications are filed claiming maintenance for each month, then the petitioner is entitled to seek an order of confining in prison for one month. In case, if the arrears of maintenance are claimed in only one application, the sentence of imprisonment cannot exceed one month.

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14. In the decision relied upon by the learned Sessions Judge and learned counsel for the petitioner reported in 1999 CRI. L. J. 5060 (cited supra), the Hon’ble Supreme Court also held that the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. This power of Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month, for breach of non-compliance of the order of the Magistrate the wife can approach again to the Magistrate for similar relief. However, the Magistrate can only sentence for a period of one month or until payment, if sooner made and the power to impose sentence cannot be enlarged.

15. The decisions relied upon by the learned counsel for the petitioner and the provisions of Section 125(3) of Cr.P.C., clearly indicate that on an application for recovery of amount due under Section 125 of Cr.P.C., to the wife, the 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 for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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. Provided that no warrant shall be issued for the recovery of any amount due under Section 125 of the Code of Criminal Procedure 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.

16. In the instant case, the petitioner has failed to comply the order dated 30.10.2002 whereby the learned Magistrate awarded compensation @ Rs.500/- each to the respondents. Therefore, the respondents filed an application dated 26.10.2004 claiming arrears of maintenance and the learned Magistrate after issuing the warrant of arrest remanded the petitioner to judicial custody on 30.06.2009 for a period of one month in lieu of payment of arrears of maintenance. Though the petitioner undergone imprisonment for a period of one month he did not chose to pay the arrears of maintenance to the respondents. Therefore, the respondents again filed another application under Section 125(3) of Cr.P.C. on 30.07.2009 seeking arrest of the petitioner again. Therefore, the learned JMFC refused to issue arrest warrant on the ground that he had already undergone imprisonment for a period of one month. Subsequently, on 20.03.2012 when the application filed by the respondents in Crl. Misc. No.118/2004 under Section 125(3) of Cr.P.C., the JMFC issued arrest warrant against the petitioner for non-payment of arrears of maintenance. The learned Sessions Judge dismissed the Review Petition filed by the petitioner relying on the decision of Hon’ble Supreme Court in Shahada Khatoon and others Vs. Amjad Ali and others.

17. Learned Counsel for the respondents submitted that though the petitioner undergone imprisonment for a period of one month awarded by the learned Magistrate for non-payment of arrears of maintenance amount the respondents are at liberty to file another application for issuance of arrest warrant against the petitioner for non- payment of amount due to them. For a breach of non- compliance of the order of the Magistrate, the wife and children of the petitioner no doubt can approach the Magistrate for similar relief invoking the provision of Section 125(3) of Cr.P.C. In such circumstances, the Supreme Court in Shahada Khatoon’s case has clearly held that “by no stretch of imagination, the Magistrate can be permitted to impose sentence for more than one month.”

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18. In the instant case, the learned Magistrate imposed sentence of imprisonment for one month for non-payment of arrears of maintenance in Crl. Misc. No.118/2004, after serving sentence for one month he was released on 30.07.2009. Again, the respondents filed another application in the same Crl. Misc. No. 118/2004 seeking arrest of the petitioner for non-compliance of the orders passed by the learned Magistrate. The learned Magistrate has issued warrant without any separate application claiming for arrears of maintenance for a further period in Crl. Misc. No.118/2004. When once the petitioner’s husband served sentence of imprisonment for a period of one month for non-compliance of the orders passed by the learned Magistrate and failure to pay the arrears of maintenance of Rs.18,000/-. The learned Magistrate was not justified in issuing arrest warrant again for the same period of arrears of maintenance. He ought to have issued warrant invoking the provision of Section 125(3) of Cr.P.C. for levying the amount due in the manner provided for levying fines. When the petitioner already suffered imprisonment for one month and such a warrant is issued for making payment of maintenance due to the respondents it has to be levied as the amount due in the manner provided for levying the fines. There can be only one imprisonment for failure to pay the amount due to the respondents and the maximum imprisonment prescribed is only one month if the arrears of maintenance are claimed in only one application.

19. The learned Sessions Judge was therefore not justified in rejecting the application filed by the petitioner. The learned Sessions Judge further granted amount of Rs.10,000/- towards cost and another Rs.5,000/- towards interim maintenance to the 1st respondent by invoking the provision of Section 26 r/w Section 23 of the Protection of Women from Domestic Violence Act, 2005 without jurisdiction.

20. The petitioner has challenged the order dated 23.12.2012 in Crl. Misc. No. 118/2004 passed by the learned Magistrate, by issuing the warrant of arrest against him for the same period amount of arrears for committing default in payment of maintenance, for which he has already undergone one month imprisonment. When the petitioner failed to pay the amount of maintenance awarded by the Trial Court the respondents are certainly entitled to file execution petition under Section 125(3) of Cr.P.C. Under Protection of Women from Domestic Violance Act, 2005, the Magistrate has got only jurisdiction and that the District Judge cannot invoke the provision of Protection of Women from Domestic Violance Act, 2005 on an application filed by the respondents seeking execution of maintenance amount awarded by the Trial Court under the provision of Section 125 of Cr.P.C. the learned Sessions Judge has exceeded the jurisdiction in awarding interim maintenance though the respondents have not claimed any maintenance under the provision of Protection of Women from Domestic Violance Act, 2005. Therefore, when the District Judge was dealing with the provisions of Section 125(3) of Cr.P.C. against the order passed by the learned Magistrate he is not expected to pass any order under the provisions of Protection of Women from Domestic Violance Act, 2005 awarding interim maintenance to the 1st respondent which was not asked for by the respondents even in the JMFC Court.

21. Therefore, the order dated 28th December 2012 passed by the learned Principal Sessions Judge, Bidar in Crl. Revision Petition No.21/2012 is hereby set aside. Consequently, the order dated 20th March 2012 passed by the learned Addl. JMFC-II, Bidar is also set aside. The learned JMFC is directed to issue a warrant for levying the amount due to respondents in the manner provided for levying fines by invoking the provisions of Section 125(3) and 421 of Cr.P.C. for recovery of arrears of maintenance from the petitioner.

Accordingly, this petition is disposed of.

SD/-

JUDGE LG/Rbv

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