Recovery of amount within a period of one year from the date on which its became due

CRR No. (F) 9 of 2013(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR No. (F) 9 of 2013(O&M)
Date of Decision 25.03.2013
Sunit Kumar
Petitioner
Versus
Rita and Ors
Respondents
CORAM: Hon’ble Mr.Justice Jitendra Chauhan
Present: Mr.Saurabh Khurana, Advocate for the petitioner
With Mr.Amar Nath Kumar father of the petitioner.
Mr.Vikram Sheoran, Advocate, for respondent No.1 and 2
Smt.Rita, respondent No.1 for her behalf and on behalf of
respondent No.2
Jitendra Chauhan, J.(Oral)
The present revision petition has been preferred for setting
aside of order dated 27.02.2013, passed by the learned District Judge,
Family Court, Hisar, whereby, petitioner was ordered to undergo
imprisonment of twelve months on account of non-payment of arrears of
maintenance to his wife and the minor daughter, as ordered by the trial
court.
The admitted facts as taken out of the impugned order are as
under:-
In execution application No.55 dated 04.02.2013 the
respondents herein i.e. the wife and the minor daughter of the present
petitioner i.e the husband sought recovery of arrears of maintenance
allowance of Rs.3,60,000/- for the period from 19.05.2009 to 03.02.2013
@ Rs.8,000/- per month as per courts order dated 04.12.2012 interalia
pleading that an amount of Rs.22,000/- had already been paid by theCRR No. (F) 9 of 2013(O&M) 2
husband and now a balance amount of Rs.3,38,000/- is still due against
the husband (the present petitioner). Admittedly the arrears of
maintenance allowance if calculated @ Rs.8,000/- per month for the
period from 19.05.2009 to 19.01.2013 comes to RS.3,52,000/- and out of
the said arrears of maintenance the respondents herein had already
received a sum of Rs.22,000/- from the husband, the petitioner herein and
now an amount of Rs.3,30,000/- is due against the husband the petitioner
herein on account of arrears of maintenance allowance from the period
from 19.05.2009 to 19.01.2013. This amount became due and payable
when on 04.12.2012, a final order awarding maintenance allowance to the
respondents (wife and minor child) was passed against the husband. In
an execution application, the husband/ petitioner had made a statement to
the effect that he is not in a position to pay the arrears of maintenance.
So, finding no other alternative the District Judge-cum-Family Court,
Hissar, vide order dated 27.02.2013, sentenced the husband to undergo
imprisonment for a period of twelve months on account of his failure to
pay the arrears of maintenance with the condition that in case the husband
clears the said amount of Rs.3,30,000/-, he shall be released, forthwith.
Aggrieved against the order dated 27.02.2013, the husband/
petitioner has filed this Revision Petition on which notice of motion was
issued to the respondents on 19.03.2013, which reads as under:
“ Learned counsel for the petitioner on instructions from
Amar Nath Kumar, father of the petitioner, undertook to
deposit Rs.50,000/- before the next date of hearing and to
pay the remaining arrears of maintenance in installments as
directed by this Hon’ble Court.CRR No. (F) 9 of 2013(O&M) 3
Notice of motion for 25.03.2013.
Mr.Vikram Sheoran, Advocate accepts notice on behalf of
respondent.
The petitioner is directed to prepare a demand draft of
Rs.50,000/- in favour of wife Smt.Rita and to bring the same
in court on the next date of hearing.
Sd/-
19.3.2013 Judge”
Today the counsel for the petitioner states that the father of
the petitioner who is present in the Court today handed over him a draft
of Rs.50,000/- for tendering in court, only if this Court orders for release
of the petitioner. The wife who is present in court states that she is a
house wife residing with her parents and she has no means to maintain
herself and her minor daughter. The wife states that her husband was an
Income Tax payee business man, but after starting of this litigation
between them, in order to avoid the liability of maintenance, he claiming
himself to be a pauper in the court, though, he has sufficient income from
his handloom business. This court is not inclined to accept such type of
conditional bargaining plea in maintenance cases, where the conduct of
the husband is to willfully disobey the order of the Court. During the
pendency of the trial he had sufficient opportunity to make part payment
of the interim maintenance. But, the petitioner did not pay it for the best
reasons known to him, resulting in harassment to the wife and the minor
child. When the counsel for the petitioner was offered to make some part
payment of the maintenance allowance, he, on instructions from father of
the petitioner, refused to pay the maintenance allowance to the
respondents. So, the prayer of the counsel for the Petitioner to release theCRR No. (F) 9 of 2013(O&M) 4
petitioner on interim bail is hereby declined.
This Court has heard the Ld.Counsel for the parties on
merits, also.
Learned counsel for the petitioner has argued that the Ld.
Executing Court has illegally sentenced the Petitioner, the court has no
power to sentence the accused in lieu of maintenance for more than one
month and the wife and her minor child can not claim arrears of
maintenance beyond one year. He referred to case Shahada Khatoon
and Ors v. Amjad Ali and Ors 1999 Crl.L.J 5060.
Learned counsel for the respondents argued that the
respondent wife is a house-wife having no means to maintain herself and
her minor child who is suffering from asthmatic problem. He further
argued that the respondents are at the verge of starvation.
This Court has carefully considered the submissions of the
learned counsel for the parties. In the identical set of facts, Hon’ble the
Supreme Court in Kuldeep Kaur v. Surinder Singh AIR 1989 SC 232
observed as under:-
“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 withoutCRR No. (F) 9 of 2013(O&M) 5
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 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. The Parliament
in its wisdom has not said so commence 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 by sending theCRR No. (F) 9 of 2013(O&M) 6
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.”
The main argument of the learned counsel for the husband
petitioner is that the respondents cannot claim maintenance beyond the
period of one year. He draws the attention of this court under section 125
(3) of the Cr.P.C which is as under:-
“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”.
It is relevant to mention here that respondent no.1 wife and
the minor daughter instituted petition under section 125 of the Code, on
19.05.2009. Vide order dated 07.08.2009, the husband was directed to
pay a sum of Rs. 4000/- per month to the minor daughter as interim
maintenance allowance from the date of filling of the main petition. Vide
order dated 04.12.2012 the Ld. District Judge, Family Court, Hissar
directed the husband(the petitioner herein) to pay a sum of Rs. 4000/- per
month to each of the petitioner as maintenance allowance from the date of
filling of the petition i.e.19.05.2009. So the lump sum amount became
due on 04.12.2012, on which date the Ld. District Judge, Family Court,
Hissar, finally awarded maintenance allowance to the respondents herein.
A perusal of the impugned order dated 27.02.2013, (Annexure P1) shows
that the respondents filed an execution application in this case on
28.01.2013, which was registered as Execution Application No.55 datedCRR No. (F) 9 of 2013(O&M) 7
04.02.2013. So, it is apparent that execution application was filed well
within one year from the date, the lump sum amount of maintenance
under the orders of court of competent jurisdiction, became due i.e.
04.12.2012, when the maintenance allowance was finally allowed. Hence,
the arguments of the Ld. counsel for the petitioner has no force that the
respondents cannot claim maintenance beyond the period of one year.
The Ld. court has awarded maintenance from the date of filing the
application under section 125 of the Code, and both the respondents were
held to be entitled to receive the maintenance at the rate of Rs.8000/- per
month from the date of filing the application i.e. 19.05.2009. As per the
Full Bench of the Hon’ble Apex Court in Kuldip Kaur Vs Surinder
Singh, AIR 1989 SC 232, it is made clear that section 125(3) (c) of the
Code, is applicable only for issuing warrant, for which, there should be
an application made by the claimant and such amount shall be levied
within a period of one year from the date on which it became due.
However, for claiming arrears of maintenance, there is no such one year
limitation as held in Kuldip Kaur’s case (supra).
The next argument of the Ld. Counsel for the petitioner is
that the Ld. Executing court cannot sentence the husband beyond the
period of one month. Again the argument has no force. In the case of
Shantha v. B.G.Shivnanjappa (2005) 4 SCC 468, the Apex Court
observed that it must be born in mind that section 125 of the Criminal
Procedure Code is a measure of social legislation and it has to be
construed liberally for the welfare and benefit of the wife and daughter.
The arrears of maintenance which is payable to the respondents is forCRR No. (F) 9 of 2013(O&M) 8
about 45 months. 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.
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 survive. The first and foremost
duty of the husband is to maintain the wife and the child. He may beg,
borrow or steal. In this case the respondent has been sentenced to
undergo imprisonment for a period of twelve months from 27.2.2013 on
account of failure to pay the arrears of maintenance of Rs.3,30,000/- for
the period from 19.5.2009 to 19.1.2013, which is a just and appropriate
order, in default to pay the maintenance allowance. In other words, it is
open for the court to award sentence up to a maximum of one month for
each month of default committed by the person ordered to pay
maintenance and the maximum limit of sentence of one month referred to
in sub section (3) of section 125 of the Code will be applicable for each
month of default. The maintenance claim has to be construed continuing
liability which becomes due at the end of every month. So, the defaulter
has to suffer imprisonment on each default to pay the maintenance. On
undergoing imprisonment in default of maintenance will not wipe out theCRR No. (F) 9 of 2013(O&M) 9
liability which shall subsist till the payment is made.
The case law cited by the Ld.Counsel for the petitioner is
distinguishable from the present case.
Keeping in view the above discussion, this Court is of the
opinion that the petitioner is not entitled to any discretionary relief.
There is no illegality in the order dated 27.02.2013 passed by the learned
District Judge, Family Court, which do not warrant any interference by
this Court. In the result, this Criminal Revision is liable to be dismissed.
Accordingly, the same is dismissed.
(JITENDRA CHAUHAN)
25.03.2013 

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