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Rajesh Dubey vs Smt. Rachna Tiwari on 21 March, 2018

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HIGH COURT OF MADHYA PRADESH
CRR 1258/2018
Rajesh Dubey vs. Smt. Rachna Tiwari and Anr.

Gwalior, dtd. 21/03/2018
Shri R.K. Soni, Counsel for the applicant.
Heard on the question of admission.

This Criminal Revision under Section 397/401 of Cr.P.C. has
been filed against the orders dated 19-2-2018 and 21-2-2018
passed by Principal Judge, Family Court, Vidisha, in case
no.244/2014 by which the applicant has been sent to jail for a
period of one year because of non-payment of Rs.1,50,000/-.

It is submitted by the Counsel for the applicant, that the
respondents are the wife and daughter of the applicant. They

had filed an application under Section 125 of Cr.P.C. for grant of
maintenance. The Trial Court by order dated 17-12-2009,
directed the applicant to pay interim maintenance @ Rs.1500/-
per month. The application filed under Section 125 of Cr.P.C.
was allowed and by order dated 16-10-2012, the applicant was
directed to pay Rs.1500/- to the respondent no.1 and
Rs.1000/- to the respondent no.2. However, it is fairly
conceded by the Counsel for the applicant, that only an amount
of Rs.1,500/- was paid by him from 17-12-2009 and the
remaining amount was not paid.

Accordingly, an application was filed by the respondents
under Section 125(3) of Cr.P.C. for recovery of maintenance
amount. The notices were issued. However, applicant did not
appear and ultimately, warrants were issued under Section 166
of Cr.P.C. and accordingly, the applicant was arrested and was
produced before the Trial Court on 19-2-2018. The Trial Court
on the said date, sent the applicant to jail, as he failed to
deposit the arrears of maintenance amount, mentioning therein
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that an amount of Rs.1,50,000/- is outstanding against the
applicant, and since, he can be sent to jail for a maximum
period of 12 months, therefore, it was directed that the
applicant be kept in jail for a period of one year or till the
outstanding amount is deposited, whichever is earlier.
Thereafter, the applicant filed an application seeking his release
from jail as the applicant was ready and willing to deposit an
amount of Rs.20,000/- which has been rejected by the Trial
Court by order dated 21-2-2018.

Challenging the orders dated 19-2-2018 and 21-2-2018,
passed by the Trial Court, it is submitted by the Counsel for the
applicant that an application was filed by the respondents
under Section 125(3) of Cr.P.C. for recovery of Rs.1,14,500/-
and according to the respondents themselves, the total
outstanding amount was Rs.1,14,500/- therefore, the Trial
Court has erroneously came to a conclusion that an amount of
Rs.1,50,000/- is outstanding. It is further submitted that the
applicant can be sent to jail for a maximum term of one month
and not for a period of one year, as done by the Court below.
It is further submitted that arrears of maintenance amount,
beyond the period of one year, cannot be claimed.

Heard the learned Counsel for the applicant.

So far as the question of quantum of outstanding arrears
of maintenance is concerned, it is clear that such an objection
has never been taken by the applicant, before the Trial Court.
The applicant has never disputed the fact that apart from
Rs.1,14,500/-, no other amount is outstanding. On the
contrary, the record shows that the respondents had filed an
application under Section 125(3) of Cr.P.C. on 3-1-2015 and on
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the said date, the total outstanding amount against the
applicant was Rs.1,14,500/-, whereas the order under
challenge has been passed on 19-2-2018 i.e., after 3 years of
the said application. Thus, it appears that the amount of
Rs.1,50,000/- must be the arrears of maintenance amount,
having accrued after the filing of the application on 3-1-2015.
The applicant has not filed the copy of the application, on the
basis of which the present proceedings have been initiated
against the applicant. Therefore, at this stage, it cannot be
ascertained by this Court that what amount is outstanding
against the applicant, and since, the applicant did not raise any
objection with regard to the quantum of the arrears of
maintenance amount before the Trial Court, therefore, he
cannot be permitted to raise such an objection before this
Court, for the first time.

It is next contended by the Counsel for the applicant, that
a person cannot be sent to jail for a period 12 months. The
submission made by the Counsel for the applicant is
misconceived and hence liable to be rejected.

Section 125(3) of Cr.P.C. reads as under :-
”(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
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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.”

The Supreme Court in the case of Poongodi Vs.
Thagavel reported in (2013) 10 SCC 618 has held as
under :-

”5. The decision of this Court in Kuldip Kaur
v. Surinder Singh [(1989) 1 SCC 405] may be
usefully recalled wherein this Court has held
the provision of sentencing under Section
125(3) to be a “mode of enforcement” as
distinguished from the “mode of satisfaction”
of the liability which can only be by means of
actual payment. Para 6 of the Report to the
above effect, namely, that the mode of
enforcement i.e. sentencing to custody does
not extinguish the liability may be extracted
below: (SCC p. 409, para 6)
“6. 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 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
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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 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. Parliament in its wisdom has not
said so. Commonsense 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
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. That
is the reason why we set aside the order
under appeal and passed an order in the
following terms ….”

(emphasis in original)

6. In another decision of this Court in
Shantha v. B.G. Shivananjappa [(2005) 4
SCC 468] it has been held that the liability to
pay maintenance under Section 125 CrPC is
in the nature of a continuing liability. The
nature of the right to receive maintenance
and the concomitant liability to pay was also
noticed in a decision of this Court in Shahada
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Khatoon v. Amjad Ali [(1999) 5 SCC 672 ].

Though in a slightly different context, the
remedy to approach the court by means of
successive applications under Section 125(3)
CrPC highlighting the subsequent defaults in
payment of maintenance was acknowledged
by this Court in Shahada Khatoon [(1999) 5
SCC 672 ].”

Thus, it is clear that the provision of Section 125(3) of
Cr.P.C. is a “mode of enforcement” and not a “mode of
satisfaction”. The order passed under Section 125 of Cr.P.C.,
stands satisfied, only when the maintenance amount is paid.
Thus, by virtue of Section 125(3) of Cr.P.C. the arrears of
maintenance does not become barred by time. So far as the
contention made by the Counsel for the applicant, that the
applicant could not have been sent to jail for a period of one
year is concerned, the same is also misconceived and hence is
liable to be rejected.

According to Section 125(3) of Cr.P.C., an application for
recovery of arrears of maintenance amount can be filed within a
period of one year from the date when such maintenance
amount became due. Thus, from plain reading of Section
125(3) of Cr.P.C., it is clear that for every monthly default, the
defaulter can be sent to jail for a period of one month and the
application under Section 125(3) of Cr.P.C. has to be filed within
a period of one year. Admittedly, the applicant has not paid
even a single paisa to the respondents from the year 2009,
except an amount of Rs.1,500/-. Thus, the defaulter can always
be sent to jail for a period of one month for every monthly
default. Thus, it is clear that for default of preceding 12
months, the defaulter can be sent to jail for a period of 12
months. Thus, the Trial Court did not commit any mistake by
sending the applicant to jail for a period of 12 months or till the
payment of Rs.1,50,000/- whichever is earlier.

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It is next contended by the Counsel for the applicant that
he is ready to deposit an amount of Rs.20,000/- and may be
granted some time to deposit the remaining amount and till the
remaining amount is paid, the applicant be released from jail.

The contention made by the Counsel for the applicant,
cannot be accepted and hence rejected simply on the ground
that the conduct of the applicant was such, which has dis-
entitled him from any sympathy. The order of interim
maintenance was passed on 17-12-2009 and the final order
under Section 125 of Cr.P.C. was passed on 16-12-2012, but in
spite of that, only an amount of Rs.1,500/- was paid by the
applicant to his wife and child. Thus, the intention of the
applicant, not to pay any maintenance amount to his wife and
his child, in spite of the order of the Court, is apparent. The
conduct of the applicant in not complying the order of the
Court, is not bona fide. Thus, under these circumstances, where
the applicant had left his wife and his child without any
resources and had left them to live the life of a destitute and to
suffer starvation, no undue sympathy can be shown to the
applicant.

Thus, in the considered opinion of this Court, no fault can
be found with the orders dated 19-2-2018 and 21-2-2018
passed by the Principal Judge, Family Court, Vidisha in case
No.244/2014 and accordingly, the said orders are hereby
affirmed.

The revision fails and is hereby dismissed.

(G.S. Ahluwalia)
Judge

*MKB*

Digitally signed by MAHENDRA KUMAR BARIK
Date: 2018.03.22 14:19:29 +05’30’

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