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Non-payment of maintenance, 1 month jail term and release


CR WJC No 721 of 2011
Laljee Yadav, son of late Bhadai Yadav, resident of village –
Bari Tola, P S – Bettiah Mufassil, District – West Champaran, Bettiah – Petitioner
1 The State of Bihar
2 The District Magistrate, West Champaran, Bettiah
3 The Superintendent of Police, West Champaran, Bettiah
4 Jail Superintendent, Bettiah Jail, West Champaran, Bettiah – Respondents

For the petitioner : M/s Md Aslam Ansari & Gautam Kumar Yadav, Advocates
For the S t a t e : Mr Prabhu Narayan Sharma, AC to AG

*** 6 16.09.2011

By this writ application, petitioner seeks his release from custody where he has been committed for non-payment of monthly maintenance in terms of Section 125 (3) of the Criminal Procedure Code, 1973 (hereinafter referred to as the Code). He was committed to custody on 05.07.2010 and notwithstanding his application for release, as filed on 27.08.2010, the Principal Judge, Family Court, West Champaran at Bettiah is passing no orders for his release apparently on the ground that so long as petitioner does not make payment of maintenance to his wife, he shall remain in custody ad infinitum, may be for life.

Noticing the peculiar situation where virtually the petitioner has been made to serve life sentence and the insensitivity of the Judge in the matter, we called for the lower Court records to examine for ourselves the facts because if what is being said by the Principal Judge, Family Court is to be accepted then the petitioner would virtually be serving a life sentence with no remission possible. With due respect, we do not think that the law is what the learned Principal Judge, Family Court contemplates it to be. What is more scandalous is, as will be shown, petitioner has been kept in prison mechanically and that too for months even without any order of remand by the learned Principal Judge, Family Court.

We are just noting one submission of the learned counsel for the petitioner which is quite an extreme submission but would show an extreme absurd possibility. Learned counsel submits that, being unable to pay the maintenance if the consequences are automatic imprisonment which, as in petitioner’s case would be, imprisonment for life, the petitioner would have done better by killing his wife where he would be sentenced to life imprisonment which would enable him to be released, in all probabilities, upon completion of 14 years of physical imprisonment as against imprisonment ad infinitum without early release in the present case. Shocking it is.

On 14.06.2005, petitioner’s wife Munni Devi filed the present case being Matrimonial Case No 85 (M) of 2005 in the Court of Subdivisional Judicial Magistrate, Bettiah claiming maintenance against the petitioner, her husband. This case was then transferred to the Principal Judge, Family Court, West Champaran at Bettiah on 09.09.2005 upon constitution of the Family Court in the district under the Family Courts Act, 1984.

From the records called for, we have seen the application filed on behalf of the estranged wife. In her application itself, she admits that she was married to the petitioner over 21 years back. She alleges that after marriage, she gave birth to a daughter and she was then thrown out of her matrimonial house. For over a decade, she had been staying with her parents with allegedly no support from the petitioner. Even when it came to the marriage of her daughter, petitioner did not participate in any manner and the daughter herself was over 21 years old and married. She alleges in her petition that her husband has some buffaloes and their family has some small agricultural plot. In Paragraph-9 of her application, she states that petitioner’s father has just retired from Railways service. It is not in controversy that both the petitioner and his wife are virtually illiterate.

On 28.12.2005, a show cause was filed by the petitioner in the said proceedings. In the show cause, he stated that immediately upon marriage, he found that his wife was already pregnant and within about three months of marriage, she gave birth to the daughter who was obviously not his child. It is because of that reason, over 20 years back, she was sent back to her parents and never returned. There was neither conjugal relationship maintained for over two decades nor any relationship for all those years.

Upon this, the Court took evidence of the parties. Persons examined on behalf of the wife also admitted that they had been living separately for over a decade. One interesting aspect is that the applicant’s witness No 4 (witness for the wife) was one Balchand Yadav who claimed be the father of Munni Devi, the wife though in her application, she has claimed to be the daughter of one late Nageshwar Yadav. We may here notice that even the Principal Judge, while awarding maintenance by his order dated 18.05.2007, has noticed that AW 4 was the father of the applicant but later, in the same order, he notes that the applicant’s father having died, she had filed this application for maintenance without noticing what he has written in the earlier part of his order.

While awarding maintenance at the rate of Rs 1,000/- per month to be paid by the petitioner to his wife by order dated 18.05.2007 which order is an eloquent order but has little legal substance, there is no discussion much less any finding with regard to the wife being unable to maintain herself or what are the materials to justify the quantification of Rs 1,000/- per month as maintenance to be paid, the legal significance of which we will notice hereunder.

At this stage, we may also notice that as against the order dated 18.05.2007, by which maintenance was fixed and ordered to be paid, the petitioner had preferred a criminal revision application before this Court without success. The order of maintenance, having attained finality, this Court does not consider it necessary to go into the merits of the said order.

It appears because of failure of the petitioner to make payment as ordered, on 14.11.2008, an application was filed by the wife pursuant to which distress warrants were issued against the petitioner straightway and it is pursuant thereto that petitioner was taken into and committed to custody on 05.07.2010. On 27.08.2010, he filed an application in the Court stating that his only source of income was physical labour as a daily wage earner and as he was ill and is in custody, he is not able to earn anything for himself much less to make any payment towards maintenance, as ordered. He sought his release.

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Alongwith the writ petition, ordersheet of the Court was annexed which, to say the least, appeared quite scandalous. We were persuaded to call for the original records of the case from the Family Court which we did. The Principal Judge, Family Court, while sending the records, has virtually disclosed to this Court that so long as the petitioner does not pay the maintenance, as ordered, the Court was obliged to keep him in custody and, as such, petitioner is being kept in custody.

Now coming to the records. The gist of orders passed in the case by the learned Principal Judge, Family Court, West Champaran at Bettiah in the case is noted hereunder:

05.07.2010 Pursuant to distress warrant issued, petitioner produced and sent to jail to be produced on 27.07.2010.

27.07.2010 Petitioner produced from custody and sent to jail to be produced on 27.08.2010.

27.08.2010 Petitioner produced from jail. Prayer made to be released (as no means to pay maintenance having fallen ill and no source for maintenance). Copy served to wife. Case adjourned to 24.09.2010. Petitioner sent back to jail. 24.09.2010 Petitioner produced from jail. Sent back to jail fixing 06.10.2010 as the next date.

06.10.2010 Petitioner produced from jail. Case adjourned to 04.12.2010.

04.12.2010 Petitioner produced from jail. Case adjourned to 31.01.2011.

31.01.2011 Petitioner produced from jail. Case adjourned to 11.03.2011.

11.03.2011 Petitioner produced from jail. Case adjourned to 16.04.2011.

16.04.2011 Petitioner not produced from jail. Case adjourned to 10.05.2011 with a direction to produce the petitioner in Court.

10.05.2011 Petitioner produced from custody. Case adjourned to 10.06.2011 and petitioner sent back to jail.

10.06.2011 Petitioner produced from custody. Case adjourned to 05.07.2011. Petitioner sent back to jail.

05.07.2011 Claimant absent. Petitioner produced from custody and sent back to jail till 28.07.2011.

06.07.2011 Petitioner sent application from jail which is ordered to be kept on record (handwritten application for release on humanitarian grounds unable to pay nor able to pursue the case).

28.07.2011 Petitioner produced from custody. Claimant absent.

Petitioner sent back to jail till 24.08.2011.

21.07.2011 Criminal writ petition filed before this Court.

From the above ordersheet, which is quite scandalous to say the least, it is apparent that the learned Judge, true to his word, ensured petitioner is detained in custody without any adjudication whatsoever in most insensitive and mechanical manner. For months together, the learned Judge even does not bother to pass any order of remand even if he was competent to do so. Petitioner’s application is consigned to records. This Court wonders that if the petitioner had not come to this Court then probably he would continue in custody ad infinitum.

Learned counsel for the petitioner relies on a Division Bench judgment of this Court in the case of Ashok Prasad -Versus- The State of Bihar & Another since reported in 2000 (1) PLJR 578 where, under similar circumstances, this Court found in a writ proceedings the detention to be illegal and unwarranted.

In our view, in order to resolve the controversy, we have to examine the import of Section 125 (1) and Section 125 (3) of the Code.

Section 125 (1) of the Code authorises a Magistrate of First Class (now the Principal Judge, Family Court) to order for payment of monthly allowance for maintenance. The relevant part thereof would be, as quoted hereunder:

“125. Order for maintenance of wives, children and parents. – (1) If any person having sufficient means neglects or refuses to maintain –

(a) his wife, unable to maintain herself, or
(b) … … …
(c) … … …
(d) … … …
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.” … … …

(Emphasis supplied) With reference to the statutory provision, as quoted above, it would be seen that before the wife can claim maintenance, two conditions have to be satisfied. First is that wife must show that she is unable to maintain herself and the second that her husband has sufficient means but neglects or refuses to maintain. Both the conditions must be satisfied before maintenance can be ordered.

We may refer to the judgment of the Apex Court in the case of Chaturbhuj -Versus- Sita Bai, AIR 2008 Supreme Court 530, the relevant part of which is quoted hereunder:

“6 Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. … … …

7 But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself. … … …”

Why we are emphasising this is that the law does not contemplate that irrespective of the facts, the wife must live at the total expense of the husband. If the wife is capable of maintaining herself then she cannot say that I will do nothing and insist that the husband provide for her comforts but that does not mean that the husband would live a comfortable life and leave his wife in a miserable state. Status of both must be maintained. Just, by way of illustration, we may state that if the wife is educated, she cannot say that I will make no effort to work which she would have done while living with her husband and now husband must provide me for all my comforts. It is because of that the Legislature in Clause (a) of Section 125 (1) of the Code have used the expression unable to maintain herself. Then the Court has to find out whether the husband has sufficient means to maintain his wife. Here again, similar principle would apply i e sufficient income for the said purpose. We must always keep in mind the status of the respective parties and not try and impose our own standards de hors the material facts being available on record. We have said all this because we find that the learned Principal Judge, who decided the matter, passed a long eloquent order but failed to notice these aspects or adjudicate upon these aspects at all but, as noticed above, the challenge to this order before this Court having not succeeded, it would not be advisable for us to interfere with that order any more.

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Now we come to the substantive provision of sub-section (3) of Section 125 of the Code, relevant part whereof is quoted hereunder:

“(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 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 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:”

(Emphasis supplied) As we see it, a plain reading of sub section (3) of Section 125 of the Code has various components which are enumerated hereunder:

(i) without sufficient cause fails to pay maintenance as ordered.
(ii) for every breach (monthly), Magistrate is to issue a warrant for recovery of amount in the manner provided for levying fines (not distress warrants against the person) .
(iii) for each month’s allowance, remaining unpaid after the execution of the warrant, sentence the person to imprisonment.
(iv) for a term which may extend to one month.
From the above analysis of Section 125 (3) of the Code, it would be abundantly clear that there is no scope for issuance of warrant and/or distress warrant for the arrest of the delinquent party. The expression warrant used in the section is warrant for levying the amount due in the manner provided for levying fine which is always misunderstood as warrant for arrest, which it is not. This is clear when we take note of the first proviso to Section 125 (3), as quoted above.

From the above statutory provision, we find it difficult to sustain the plea that no sooner there is a default in payment of maintenance, distress warrant for arrest has to be issued. The expression warrant used in sub-section (3), as quoted above, is for the purposes of recovery of the amount due which has to be done in the manner provided for levying fines. The Code itself provides by Section 421 for warrant for levy of fine, the relevant part of Section 421 alongwith the relevant proviso is quoted hereunder:

421. Warrant for levy of fine.- When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both of the defaulter; … … …
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender. (Emphasis supplied) We must have notice one specific position. A reference to Section 421 and the proviso would show that it clearly prohibits a person to be imprisoned in execution of warrant levying fine which would simply for recovery of the maintenance and, thus, there is no scope for issuance of any distress warrant for detaining a defaulter husband. What the Magistrate or now the Principal Judge is to do is to sentence him for failure to comply with the order of maintenance. For the purposes of sentencing, the Code has provision in terms of Sections 29 and 30 thereof but the question remains that can there be a sentence straightway upon default being shown. In our view, no. The reason is that if we once again refer to Section 125 (3) of the Code, it would show that the whole provision is conditioned upon “any person so ordered fails without sufficient cause”. Therefore, before proceeding even to issue warrant for recovering the amount, it is incumbent upon the Court to come to a finding that there is no sufficient cause for failure to obey the order. This finding can only be arrived at after a notice is issued to the party who is in default and he is heard in the matter. Once that is done then warrant for recovery of the amount can be issued in the manner as provided under Section 421 of the Code for recovery of fines and for recovery of the balance remaining unpaid without reasonable cause, he may be sentenced to imprisonment which may extend to one month only for each months default. This position we will again refer later with reference to judgment of the Apex Court.
Here, we may notice three judgments. In the case of Karnail Singh -Versus- Gurdial Kaur, 1974 Cri L J 38, similar provision under the old Code was considered and their Lordships of the Punjab and Haryana High Court held, while interpreting the similar provision in Section 488 (3) of the Criminal Procedure Code, 1898 which is in pari materia to Section 125 (3) of the present Code that there should be first issuance of warrant of attachment of property and if whole or any part remains unpaid after execution of such warrant and there be no sufficient cause, imprisonment can be ordered. Warrant of arrest directed to be issued without first having recourse to attachment and sale of property would be, thus, illegal.

Then we may refer to the case of Om Parkash -Versus- Vidhya Devi, 1992 Cri L J 658 which was a case under the provisions of Section 125 (3) of the present Code. Their Lordships of the Punjab and Haryana High Court specifically referred to Section 421 of the Code and have taken the view similar to what we have indicated above.

We may also refer to a judgment of the Calcutta High Court in the case of Dipankar Banerjee -Versus- Tanuja Banerjee since reported in 1998 Cr L J 907 wherein it has been categorically held, with reference to Section 125 (3) of the Code, that the Magistrate has no jurisdiction to issue warrant of arrest straightway against a person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the Court without first levying the amount due as fine and without making efforts for realisation thereof in terms of Section 421 of the Code. His Lordship held that the Magistrate, issuing warrant of arrest straightway, was without jurisdiction and not warranted by law.

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Now, we may refer to a Division Bench judgment of this Court directly on the issue delivered over a decade back, notice of which was not even taken by the learned Principal Judge, Family Court which is directly applicable to this case being Ashok Prasad -Versus- State of Bihar & Another since reported in 2000 (1) PLJR 578. The facts are also similar and the Division Bench held clearly that there are two conditions necessary before sentencing a person to imprisonment. It must first satisfy that the person, without sufficient cause, is not paying maintenance. Secondly, it must issue warrant for levying the amount due in the manner provided for levying fine and after its execution to ascertain the amount which remains unpaid. The sentencing to imprisonment can take place after that but without complying with the aforesaid two conditions, his detention in person would be illegal. Unfortunately, in total disregard to the binding precedent, the learned Principal Judge, Family Court proceeded. The result is that the petitioner is being detained in custody ad infinitum which is against the statutory provisions.

Before proceeding further, we may note a Division Bench judgment of the Bombay High Court in this regard in the case of Dnyaneshwar Baburao Gorel -Versus- Sau Kamal Dnyaneshwar Gorel & Others since reported in 1992 Cr L J 835. Their Lordships have analysed the issue of “sufficient cause” as appearing in Section 125 (3) of the Code. Their Lordships have held that first, the Magistrate would be bound to issue show cause and enquire into the sufficiency of cause for default and only then proceed for recovery and in default sentencing.

Again, this is significant inasmuch as the maintenance being a monthly payment, for each month’s default, defaulter can be sentenced for a month’s imprisonment. Now, we find there is a concept of one month as a unit. Here, we may refer to the decision of the Apex Court in the case of since reported in the case of Shahada Khatoon & Others – Versus- Amjad Ali & Others, (1999) 5 Supreme Court Cases 672. That case went from this Court and a similar stand was taken on behalf of the wife before the Apex Court that so long as payment is not made, the husband would be liable to be detained and the person would continue in custody until payment is made. The Apex Court rejected the contention. Their Lordships referred to sub-section (3) of Section 125. The judgment of the Apex Court, as reported, is quoted hereunder:

“The short question that arises for consideration is whether the learned Single Judge of the Patna High Court correctly interpreted sub-section (3) of Section 125 of CrPC by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned counsel for the appellants contends that the liability of the husband arising out of an order passed under Section 125 to make payment of maintenance is a continuing one and on account of non-payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. We are unable to accept this contention of the learned counsel for the appellants. The language of sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month. For breach or non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month. In that view of the matter the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. The appeal accordingly fails and is dismissed.”

(Emphasis supplied) Here, we may like to point out another aspect of the matter.
As seen above, the maintenance is to be fixed on monthly basis. The sentence has, accordingly, been limited to a month maximum for each breach. Thus, as noticed by the Apex Court in the above referred to cases, there has to be separate sentencing upon separate and fresh application after considering the matter for each month or part thereof for which maintenance remains unpaid. Thus, by no stretch of imagination, can there be a continuous mechanical remand as in the present case.

How counter productive is the order would be apparent from the fact that petitioner has pleaded that virtually he is a daily wage earner and if he is kept behind Bars, apart from not providing anything for himself, he cannot provide maintenance and he must remain behind bars. How does he get out of the vicious circle? This only shows the total insensitivity of the Judge on the issue. How has the learned Judge helped the cause of the wife in any manner? How has he furthered the object of the statutory provision, we failed to see.

Looking to the facts of the case, it would be clear that for over a decade, the husband and wife had nothing to do with each other and now suddenly when the husband’s father retires from the Railways service, the cause for maintenance arises. It is said that the father of the wife is dead and, hence, the cause for maintenance but the learned Judge himself notices the father deposing as AW 4 and the wife AW 5 not challenging her own witness on this count. We say no more.

We, therefore, hold that the detention of the petitioner cannot be justified and is contrary to the scheme as provided under Section 125 (3) of the Code. We have no option accordingly but to direct the immediate release of the petitioner, while quashing the order committing the petitioner to custody and subsequent orders of remand. The writ application is allowed.

Let the order of this Court alongwith the records received from the Principal Judge, Family Court, West Champaran at Bettiah be sent to the said Court immediately by Special Messenger.

M.E.H./ (Navaniti Prasad Singh)

(Ashwani Kumar Singh)

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