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PETITIONER: SMT. KULDIP KAUR

       Vs.

RESPONDENT: SURINDER SINGH AND ANR.

DATE OF JUDGMENT03/11/1988

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) NATRAJAN, S. (J)

CITATION:  1989 AIR  232            1988 SCR  Supl. (3) 762  1989 SCC  (1) 405        JT 1988 (4)   412  1988 SCALE  (2)1329

ACT:     Code  of  Criminal Procedure, 1973-Sections 125  to  128 Distinction to be made between mode of enforcement and  mode of satisfaction of maintenance order-Sentencing the person o jail is a mode of enforcement and not a mode of satisfaction of the liability. %     Code  of criminal Procedure, 1973-Section 125-Order  for maintenance  of  wife  and  child  passed-Whether  detaining husband  in  jail for failing o pay arrears  of  maintenance would  be  tantamount  to  satisfaction  of  the  order   of maintenance  even  though  areas  of  maintenance  allowance remain unrecovered in fact-Held no. Actual payment must  the made for satisfaction of he order.

HEADNOTE:     The  appellant was awarded maintenance for  herself  and her  son to be paid by respondent No. 1, her husband,  under Section 125 of the Code of Criminal Procedure, 1973, by  the Metropolitan  Magistrate.  The  husband  did  not  pay   the maintenance  allowance  and  it  fell  into   arrears.   The appellant  moved an application for execution of  the  order for  maintenance. In the course of enforcement of the  order of  maintenance the husband was sentenced to  suffer  simple imprisonment  for one month by the Metropolitan  Magistrate. The appellant again prayed for recovery of the arrears.  The Metropolitan  Magistrate rejected her prayer on  the  ground that the claim for arrears stood satisfied upon the  husband having  been sent to jail. The appellant filed a  revisional application  in the High Court. The High Court rejected  the revisional  application summarily without a speaking  order. Hence this appeal by special leave.     Allowing the appeal, this Court,     HELD:  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  maintenance  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

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                                                 PG NO 762                                                   PG NO 763 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 not  to  wipe  out the liability which  he  has  refused  to discharge.  be it also realised that a person  ordered   pay monthly  allowance can be sent to jail on if he  fails   pay monthly  allowance 1without sufficient cause’   comply  with the  order.  I 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. A sentence of jail is no substitute for  the revocery 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 b 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 he 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  no  a  mode  of discharging  liability. The order for monthly allowance  can be   discharged  only  upon  the  monthly  allowance   being recovered. [767B-G]

JUDGMENT:     CRIMlNAL APPELLATE JURISDICTION Criminal Appeal No 4  of 1983.     From the Judgment and Order dated 29.7.1982 of the Delhi High Court in Criminal Revision No 187 of 1982.     Anand Prakash and V. B. Saharaya for the Appellant.     Arvind Kumar, Mrs Laxmi Arvind. Ms K. V  Lalitha and  K. B. Chatterjee for the Respondents.     The Judgment of the Court was delivered by     THAKKAR, J. We have yet to come across a case of a  wife wronged by her husband and a child wronged by his father who had to suffer also at the hands of the Court For, while  the Trial  Magistrate  has  disposed of the  matter  in  a  very cursory  manner  taking a thoroughly  untenable  and  unjust view, the High Court has rejected the Revisional Application summarily  Both the Courts have done so notwithstanding  the fact that the point involved (whether detaining the  husband in jail for failing to pay the arrears of maintenance  would be  tantamount to satisfaction of the order  of  maintenance passed in her favour even though the arrears of  maintenance                                                   PG NO 764 allowance  remain  unrecovered in fact) is  not  capable  of being answered against the petitioner.     The  Metropolitan  Magistrate (Shri L.D. Malik)  in  his order  dated July 4, 1981 recorded a clear finding that  the husband was guilty  of cruelty in the context of the  demand for dowry. He observed:     "I  have  heard  the attorney  for  the  petitioner  and carefully  examined the evidence produced by the  petitioner and  find that the evidence on record is sufficient to  show that  the  petitioner was maltreated and  neglected  by  the respondent.  The  evidence  on  record  indicates  that  the petitioner  was maltreated and neglected by the  respondent. The  evidence  on record indicates that the  petitioner  was maltreated on account of less dowry and was not looked after

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properly during the course of her advance stage of pregnancy The  evidence  also indicates that the  respondent  did  not bother  about the petitioner gave birth to a male child  The statements  of  the  witnesses which  include  that  of  the petitioner and her father are unrebutted by any evidence  on behalf of the respondent and the averments of the respondent in  his  reply  are unsupported by any  evidence  since  the respondent   did  not  produce  any  evidence  having   been proceeded  ex  parte on account of his  absence  The  cross- examination of the witnesses of the petitioner also does not reveal  any  thing so as to support the  allegation  of  the respondent in his reply. "     In  the context of this finding a sum of Rs 200  to  the wife  and  Rs 75 to the son were awarded  by  the  aforesaid order.     The respondent-husband was in arrears to the tune of  Rs 5090.  The  wife moved an application for execution  of  the order  for  maintenance in order to recover the  arrears  of maintenance.  In the course of enforcement of the  order  of maintenance  dated 17.1.1982 the  husband was  sentenced  to suffer  simple  imprisonment for one month pursuant  to  the order  dated 1.1.1982 of the Metropolitan  Magistrate  (Shri L.D.  Malik).  The operative portion of the order  reads  as under     "The   J.D.  Surinder  Singh,  s/o  Bhagwan   Singh   is accordingly  sentenced  to S.I. for one month and  shall  be released  if he makes payment of Rs.5090 as maintenance  due from him upto 16.1.82. Both the execution tiles pending  are                                                   PG NO 765 disposed of accordingly except that payment of R.400 remains to be paid to D H. who shall appear personally for obtaining the amount.     The  wife prayed for recovery of the arrears,  whereupon the  Metropolitan  Magistrate  rejected her  prayer  on  the ground  that the claim for arrears stood satisfied upon  the husband  having  been sent to jail.  Says  the  Metropolitan Magistrate:     "The  J.D. was sentenced to Jail for one month  and  the order  of  the  court  dated 17 .1.82  are  material  to  be mentioned  here vide which it has been decided that the J  D was  sentenced  for  non-payment  of  maintenance  allowance Rs.5090  due  from  him upto 16.1.82. The J  D  remained  in custody  for one month and as per orders dated 17.1.82,  sum of Rs 5090 stands satisfied. As per orders of the court, the J. D.  was  directed to pay Rs 400  remaining  amount.  This amount was paid on 19.1.82 by the J. D. to the decree-holder."     The   wife  who  wanted  the  maintenance   amount   for maintaining herself and the minor child approached the  High Court by way of a revisional application. Naturally the need of  the  wife  for a few crumbs of  bread  for  herself  and spoonfuls  of milk for her minor son were not  satisfied  by the  imprisonment of the husband for one month. These  needs would  be  satisfied  only  upon  the  economic  means   for purchasing  the crumbs of bread and spoonfuls of milk  being provided  by  effecting  the  recovery  of  the  maintenance amount. The learned Metropolitan Magistrate having failed to do  so.  the  wife approached the High Court  by  way  of  a Revisional  Application. Even though no support  was  sought from any provision of law and it was assumed that the  claim for recovery stood satisfied upon the husband being sent  to jail,  the  High Court rejected the  Revisional  Application summarily  without a speaking order, on 29th July, 1982.  It is this order which has been subjected to appeal by  special leave.     We  fail  to comprehend how such an  important  question

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arising  in  the  context of the  petition  preferred  by  a helpless  woman  could have been summarily rejected  by  the High Court by a non-speaking order. To say the least of  it, it betrays total lack of sensitivity on the part of the High Court to the plight of a helpless woman. Were it not so, the High  Court  would have at least  passed  a  speaking  order unfolding  the  rational process which made the  High  Court                                                   PG NO 766 feel  helpless  in helping a helpless woman and  a  helpless child.  The legal position may not be examined. Section  125 of the Code of Criminal Procedure Code (hereinafter referred to  as  the Code) provides for an order for  maintenance  to wives, children and parents. A Magistrate upon being   about the proof of negligence or refusal on the part of the person from whom monthly allowance for the maintenance of the wife, child,  father  or mother as the case may be, is  due,  upon being   satisfied  about  the  fact  that  the  person   has sufficient  means, may pass an order for  monthly  allowance under  sub-sections (1) and (2) of Section 125 of the  Code. Section 128 of the Code provides for enforcement of such  an order  of maintenance passed by a competent Magistrate.  The section reads as under:     "128.  Enforcement of order of maintenance---A  copy  of the  order of maintenance shall be given without payment  to the  person in whose favour it is made, or to his  guardian, if  any,  or to the person to whom the allowance  is  to  he paid;  and such order may be enforced by any  Magistrate  in any  place where the person to whom the allowance is  to  be paid;  and such order may be enforced by any  Magistrate  in any  place where the person against whom it is made may  be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due."     Sub-section  (3) to Section 125 deals with  the  problem arising  in  the   of  a  person  against  whom  order   for maintenance   allowance  has  been  made   failing   without sufficient cause to comply with the order. It deserves to be reproduced to the extent material for the present purposes:     "  125(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  finest and may sentence such person,  for  the whole or any part of each month’s allowance 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.     The  scheme  of  the  provisions  embodies  in  Chapter IX  of  the  Code comprising of Sections 125  to  128  which constitutes  a  complete  code  in  itself  requires  to  be comprehended.  It  deals  with three  questions,  viz.:  (1)                                                   PG NO 767 adjudication  as  regards  the  liability  to  pay   monthly allowance  to  the neglected wife and child  etc.,  (2)  the execution of the order on recovery of monthly allowance, and (3) the mode of execution of an order for monthly allowance. Now, one of the modes for enforcing the order of maintenance allowance  with  a  view to effect recovery  thereof  is  to impose  a sentence of jail on the person liable to  pay  the monthly allowances.     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

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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 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 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                                                   PG NO 768 why we set aside the order under appeal and passed an  order in the following terms:     "Heard both the sides.     The  appeal is allowed. The order passed by the  learned Magistrate as confirmed by the High Court in exercise of its revisional  jurisdiction  to the effect that the  amount  of monthly  allowance payable under Section 125 of the Code  of Criminal  Procedure is wiped out and is not recoverable  any more  by reason of the fact that respondent No. 1,  Surinder Singh,  was  sent to jail in exercise of  the  powers  under Section  125 of the Code of Criminal Procedure is set  .  In our opinion, respondent No. 1, husband of appellant, is  not absolved from his liability to pay the monthly allowance  by reason  of his undergoing a sentence of jail and the  amount is  still  recoverable  notwithstanding the  fact  that  the respondent  No.  1 husband who is liable to pay  he  monthly allowance  has undergone a sentence of jail for  failure  to pay the same. Our reasons for reaching this conclusion  will follow.     So  far  as the amount of monthly allowance  awarded  in this particular case is concerned, by consent of parties, we pass  the following order in regard to future payments  with effect from 15th August, 1986.     We direct that Respondent No 1, Surinder Singh shall pay Rs.275 (Rs.200 for the wife and Rs 75 for the child) as  and by  way  of  maintenance to the appellant  Smt  Kuldip  Kaur commencing from August 15, 1986. The amount of Rs 275  shall be paid by the 15th of every succeeding month. On failure to

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pay  any  monthly allowance for any month hereafter  on  the part  of  respondent  No  1,  Surinder  Singh,  the  learned Metropolitan  Magistrate  shall  issue  a  warrant  for  his arrest,  cause  him to be arrested and put in jail  for  his failure  to comply with this Court’s order and he shall  not be released till he makes the payment.     With  regard to the arrears which have become  due  till August  15, 1986, learned counsel for the  appellant  states that  having  regard to the fact that respondent No  1,  has agreed  to the aforesaid consent order, the  appellant  will                                                   PG NO 769     not  apply for the respondent being sent to  jail  under Section  125  of  the Code of Criminal  Procedure  but  will reserve the liberty to realize the said amount (Rs 5090 plus the  difference between the amount that became due  and  the amount actually paid under the interim order) under the  law except  by seeking an order for sending respondent No. 1  to jail.     The appeal will stand disposed of accordingly ." H.S.K.                                        Appeal allowed. Pg. No. 770