maximum punishment is one month for non payment of maintenance of number of months, Punjab high court, Feb2016

Crl. Revision No.1676 of 2015 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Revision No.1676 of 2015 (O&M)
Date of Decision: 25.02.2016
Krishan Kumar
…Petitioner
Versus
Ritu and another
…Respondents
CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the digest?
Present: Mr. S.K. Chauhan, Advocate
for the petitioner.
Mr. Bhupander Ghangas, Advocate
for the respondents.
*****
ANITA CHAUDHRY, J.
1. This revision is directed against the order dated
30.03.2015, passed by the District Judge (Family Court),
Bhiwani who had ordered the husband to undergo
imprisonment from 30.03.2015 to 29.03.2016 as he failed to
pay Rs.78,000/- as maintenance for 13 months.
2. A petition under Section 125 of Cr.P.C. was filed
by the wife. The husband failed to appear and was proceeded
ex-parte. The Family Court, Bhiwani vide order dated
09.05.2013 allowed maintenance of Rs.4,000/- per month to
the wife and Rs.2,000/- per month to the child from the date
of application.
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3. A petition under Section 125(3) Cr.P.C. seeking
enforcement of the order was filed. Warrants of arrest were
issued. The respondent was arrested. He had stated that he
had no money to pay. The District Judge (Family Court)
Bhiwani, vide order dated 30.03.2015 sentenced him to
undergo imprisonment for a period of 12 months starting from
30.03.2015 to 29.03.2016. That order has been assailed.
4. On 22.12.2015 it was submitted before the coordinate
Bench that the husband was ready to make part
payment. An objection was taken by the respondent regarding
the maintainability of the revision. It had been urged that the
order passed by the District Judge (Family Court) was an
appealable order in view of Section 19(1) of the Family Court
Act. The petitioner was directed to deposit Rs.40,000/- with
the Family Court as an interim measure and on deposit he
was directed to be released on interim bail. The question of
maintainability of the revision petition was kept open. It was
also pointed out that another petition filed by Madan was
pending. Therefore, it was ordered to be put up with that.
5. On 12.02.2016 when the matter came up before
this Court, it was pointed out that the petitioner had not
deposited the amount and he was still in custody.
6. I have heard the submissions of both the sides.
7. The counsel for the petitioner had urged that the
revision was maintainable under Section 19(4) of the Act
which was analogous provision under Section 397 Cr.P.C. and
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this aspect has been examined by various High Courts in
Rajesh Shukla Vs. Smt. Meena Shukla and another
2005(3) RCR (Criminal) 275, Aakansha Shrivastava Vs.
Virendra Shrivastava and another 2010(5) RCR
(Criminal) and Sateppa Basappa Vs. Ku. Geetha 1999
CRI LJ 927. It was urged that the husband could not have
been sentenced to an imprisonment for more than one month
and in case of non-payment of maintenance, the wife could
approach again for similar relief and the family Court had
imposed a sentence of more than one year which is illegal.
Reliance was placed upon Shahad Khatoon and others Vs.
Amjad Ali and others 1999(5) SCC 672.
8. On the other hand, the submission on behalf of the
wife was that an order had been passed under Section 125
Cr.P.C. and the execution had been filed and the Court could
not go into the legality or validity of the order and the
Calcutta High Court had dismissed the revision. Reliance was
placed upon Ashim Kumar Chatterjee Vs. Smt. Moushumi
Chatterjee Nee Bhattacharjee 2011(1) AICLR 507
(Calcutta). It was urged that the husband had failed to pay
the amount and therefore, could not be released. It was urged
that there was an offer that he would deposit the amount but
still the amount has not been paid.
9. In so far as the judgment referred to by the
respondent is concerned, the same is not applicable. It was a
second revision which was filed before the High Court and in
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that context, it was held that it was not permissible in view of
the specific statutory bar contained in Section 397(3) Cr.P.C.
There the order was first challenged in a revision before
Sessions Court which came to be dismissed and a second
revision had been preferred before the High Court.
Section 19(4) of the Family Court Act reads as
under:-
The High Court may, of its own motion or otherwise, call
for and examine the record of any proceeding in which the Family
Court situate within its jurisdiction passed an order under Chapter IX
of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose
of satisfying itself as to to the corrections, legality of propriety of
order, not being an interlocutory order and as to the regularity of
such proceeding.
10. From the above provision, it is clear that an order
passed under Chapter IX of the Code of Criminal Procedure is
revisable order even suo moto by the High Court. The order
had been passed by the District Judge (Family Court) and
revision would lie only to the High Court. Even if it is taken
that the appeal was maintainable then not getting into
technicalities an appeal can be treated as a revision and vice
versa. That position in law is also clear.
11. An important question has been raised in this
revision. To examine the same it is necessary to refer to the
provisions.
Section 125(3) of the Cr.P.C. reads as under:
If any person so ordered fails without sufficient cause to
comply with the order, any such Magistrate may, for every
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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:
Provided further that if such person offers to maintain his wife
on condition of her living with him, and she refuses to live with
him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this section
notwithstanding such offer, if he is satisfied that there is just
ground for so doing.”
12. In Shahad Khatoon’s case (supra) the question
raised was whether on account of non-payment of
maintenance, the Magistrate would be entitled to impose a
sentence on the husband and whether he could be kept in
custody until the payment is made. The Apex Court had held
that the view was not acceptable and the language of Section
125(3) Cr.P.C. was clear and the power of the Magistrate
could not be enlarged. The concluding lines of the judgment
are as under:-
…….This power of the 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. By no stretch of imagination the Magistrate can
be permitted to impose sentence for more than one month. In
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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.”
13. In Sundaran Vs. Sumathi 2006(3) KLT 725 it
had been contended before the Court that irrespective of the
number of defaults that are committed in paying each month’s
maintenance, there is a cap of one month on the total period
of imprisonment that can be imposed and therefore, the
sentence ordered by the Magistrate for more than one month
was illegal. The contention was rejected and it was answered
by the Court as follows:-
“8. I have carefully gone through each sentence in the judgment
extracted above. It is impossible to deduce the conclusion which the
learned counsel for the petitioner wants this court to accept from any
sentence of the judgment or the cumulative effect of all the sentences.
The Supreme Court has not held so. It would be unreasonable for this
court to hold that the Supreme Court has held so because it goes
against the policy of law and the specific stipulations in S.125. I have
adverted to this contention in detail, though a reading of the statutory
provisions in the light of the decision of the Supreme Court does not
leave behind any doubt in my mind, only because it is submitted at the
Bar that many Family Courts/Magistrates do choose to follow the
interpretation which the petitioner wants to place on the decision in
Shahada’s case, I need only say that the Supreme Court has not held
so. It would be myopic and puerile to hold that the Supreme Court
said so. The statutory provisions must lead to the inevitable and
unmistakable conclusion that each month’s default would be visited
with the maximum sentence of one month’s imprisonment. The mere
fact that the destitute has not chosen to complain every month and
has chosen to complain of the breach in respect of plurality of months
in one petition within a period of 12 months cannot at all deliver to the
defaulter any undeserved advantage. This contention is obviously
unacceptable and unsustainable. The Supreme Court was obviously
not considering the question whether more than one months
imprisonment can be awarded for breach of the direction to pay
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maintenance committed in respect of more months than one. Though
the tactual matrix is not adverted to in detail in the judgment
extracted above it is evident that the Supreme Court was considering
the question whether more than one month’s imprisonment can be
imposed on the defaulter if the breach to pay maintenance for one
month continues for more months than one. If the default to pay
maintenance for a particular month continues for any length of time,
maximum imprisonment of one month alone can be imposed. That is
all what the Supreme Court has held. The Supreme Court was
considering the contention by the counsel that in the event of breach,
the defaulter can be detained in custody till the payment is made. That
is evident from the judgment (see the portion underlined which refers
to the contention). That contention was repelled holding that endless
detention until payment was effected cannot be made. There is no
reported decision of this court or any other court on the interpretation
of Shahada Khatoon except that of the Allahabad High Court. I
respectfully disagree with the learned Judge of the Allahabad High
Court who understood Shahada Khatoon differently in Dhilip Kumar
v. Family Court (2000) Crl.L.J. 3893) without reference to the earlier
decisions of that Court in Emperor v. Beni (AIR 1938 Allahabad 386)
(F.B.) and Ram Bilas v. Bhagwati Devi (1991 Crl.L.J. 1098).”
14. Doubting the correctness of the above judgment,
the matter was referred to a Division Bench and to resolve the
conflicting decision of various single Benches, the matter was
taken up in Santosh Vs. State of Karela RPFC No.34 of
2010, decided on 18.11.2013 and after referring to numerous
judgments, the principle laid down in Sundaran Vs. Sumathi
2006(3) KLT 725 was approved.
15. So the question relates to the quantum of
punishment that can be imposed for recovery of arrears of
maintenance. Under S.125(3), the sentence, for the whole or
any part of each month’s allowance remaining unpaid, after
the execution of the warrant, can only be imprisonment for a
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term which may extend to one month or until payment if
sooner made. Does this provision mean that the maximum
sentence which the Magistrate can impose is only one month?
The power to sentence is in respect of the whole or any part,
of each month’s allowance defaulted and therefore for the
default in respect of each month, there can be a sentence of
imprisonment upto one month. It is not correct to assume
that the power of Magistrate is to impose only a month’s
imprisonment irrespective of the duration of the arrears of
maintenance. A month’s imprisonment for every month’s
default is the maximum penalty under S.125 (3) and not a
maximum of a month’s imprisonment for the total default.
16. The court has to exercise its discretion in each case
and decide whether the maximum penalty should be imposed
or whether a lesser punishment is sufficient. A month’s
imprisonment for every default is not the rule and sentencing
cannot be mechanical. The court has to apply its mind,
consider the circumstances of each case and then decide
about the quantum of punishment, having due regard to the
statutory limit of the maximum punishment of one month for
each default.
17. In view of the discussions made above, the order
of the learned Family Judge is wholly unsustainable. I am
fortified in my view by a decision of the Apex Court reported
in (1999) 5 SCC 672:(1999 AIR SCW 4880) (Shahada
Khatoon v. Amjad Ali). The Apex Court has gone to the
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extent of saying that the confinement can extend to only one
month and if even after the expiry of one month the
delinquent husband does not make the payment of arrears
then the wife can approach the Magistrate again for a similar
relief but the confinement of the husband must be only of one
month. This decision of the Apex Court further lays down a
fetter in the exercise of this power by the Judicial Magistrate
or the Family Judge to the extent that only a confinement for
a period of one month can be passed on an application
whether the amount claimed by the wife as arrears is for
more than one month or for only a month. In one stroke no
composite confinement can be directed by the Court. It very
clearly flows from the above decision.
The petition is allowed. The petitioner be released
forthwith. However, liberty is granted to the wife to file fresh
application alleging non-compliance of the order passed under
Section 125 Cr.P.C. The Court below would pass order on the
prayer made. A copy of this order be sent to the Court below.
(ANITA CHAUDHRY)
JUDGE
25.02.2016
‘Sunil’
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