Sarvesh Kumar Vs State of U.P. and Another

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Neutral Citation No. - 2025:AHC:38790

Court No. - 71

Case :- APPLICATION U/S 482 No. - 22105 of 2024 Applicant :- Sarvesh Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mohit Sharan Tomar Counsel for Opposite Party :- G.A.

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Hon'ble Raj Beer Singh,J.

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Heard learned counsel for the applicant and learned A.G.A. for the State. None has appeared on behalf of opposite party No. 2 despite service of notice.

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This application under Section 482 Cr.P.C. has been preferred against the orders dated 09.05.2023 and 15.03.2024, passed by the learned Additional Principal Judge, Family Court No. 3, Bareilly, in Case No. 974 of 2022, (Smt. Rajni v. Sarvesh).

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It has been submitted by learned counsel for the applicant that the opposite party No. 2 was awarded maintenance @ Rs. 4,000/- per month by the Family Court vide order dated 23.04.2018. By order dated 09.05.2023 the Family Court concerned has held that there were arrears of maintenance amounting to Rs. 1,24,000/- and accordingly applicant was directed to deposit the said amount. The applicant has filed an application before the Family court stating that under Section 125(3) Cr.P.C. arrears in respect of only one year can be recovered and that opposite party No. 2 was also not entitled for Rs. 20,000/-, which were awarded as costs of the case. In the application it was further alleged that for the period of one year the amount of maintenance is Rs. 48,000/-, whereas applicant has already paid an amount of Rs. 53,000/- to the opposite party No. 2 and thus, the proceedings under Section 125(3) Cr.P.C. may be closed. It was submitted that the said application has been rejected by the Family court in an arbitrary manner without considering facts and law.

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I have considered the submissions and perused the record.

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5. Before proceeding further, it would be apt to refer the provisions of section 125(3) CrPC, which reads as under:

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"125. Order for maintenance of wives, children and parents.

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(1) xxxxxx

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(2) xxxxx

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(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,] [Substituted by Act 50 of 2001, Section 2 for "allowance" (w.e.f. 24-9-2001).] 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 :

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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:

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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."

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It appears from aforesaid provision that in the event of any failure on the part of any person to comply with an order to pay maintenance allowance, without sufficient cause, the Magistrate / Family Court is empowered to issue warrant for levying the amount due to in manner provided for levying fines for every breach of the order. Section 421Cr.P.C. prescribes the manner for levying fine and clause (a) of subSection (1) of Section 421 provides for issuance of warrant for levy of the amount by attachment and sale of any movable property belonging to the offender. In case of Kuldip Kaur V Surinder Singh and Anr (1989) 1 SCC 405, the Apex Court held that 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. The Court held as under:-

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‘‘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

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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. 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:’’

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In the instant matter perusal of record shows that opposite party No. 2, who is wife of applicant, was awarded maintenance @ Rs. 4,000/- per month from the date of order by the Family Court/ F.T.C.-1st, Bareilly vide judgement dated 23.04.2018. Besides maintenance, an amount of Rs. 20,000/- was awarded as costs of litigation. It appears that the opposite party No. 2 has filed an application under Section 125(3) Cr.P.C. on 28.06.2022, alleging that earlier her husband has compromised the matter with her and she has started living with him but in April, 2020 she was again turned out from matrimonial home. She has prayed for recovery of arrears of maintenance of 51 months and litigation expenses Rs. 20,000/and thereby the prayer was made for issuance of recovery warrant for Rs. 2,24,000/-. The applicant has filed objection against the said applicant. By order dated 09.05.2023 the Family court has held that as under Section 125(3) Cr.P.C. the opposite party No. 2 was entitled for arrears of 12 months preceding to the application and in this way the applicant is liable to pay arrears of Rs. 48,000/- as maintenance of 12 months and Rs. 36,000/- for the arrears of 9 months which elapsed after filing of the said application and Rs. 20,000/- as costs and in this way the applicant is liable to pay sum of Rs. 1,24,000/-. The applicant has preferred another

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application stating that the recovery warrant of Rs. 1,24,000/- has been issued against him, whereas as per the provisions of Section 125(3) Cr.P.C. the opposite party No. 2 is entitled only for recovery of arrears of one year preceding to the application. Similarly she was not entitled for recovery of Rs. 20,000/- imposed as costs of litigation expenses. That application has been rejected by the Family court vide impugned order dated 15.03.2024 mainly on the ground that the applicant has not challenged the earlier order dated 09.05.2023.

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It is apparent from record that the opposite party No. 2 has filed the aforesaid application under Section 125(3) Cr.P.C. on 28.06.2022. The amount of arrears of maintenance of one year comes to Rs. 48,000/-. It appears that there was no further application on behalf of opposite party No. 2 for recovery of arrears of maintenance for the period subsequent to the filing of the aforesaid application dated 28.06.2022 and thus, the observation of the Family court that the opposite party No. 2 was also entitled for recovery of arrears of 9 months for the period which elapsed after filing of the said application, is not in accordance with law. Further, the Family court has mentioned that the arrears of maintenance of 12 month are Rs. 48,000/- and the arrears of maintenance of 9 months are Rs. 36,000/- and by this way the amount of arrears of maintenance comes to Rs. 1,04,000/-. This calculation is apparently is incorrect. After adding Rs. 36,000/- in amount of Rs. 48,000/-, it comes to Rs. 84,000/-. No doubt it is correct that the liability can be satisfied only by making actual payment of the arrears and the provisions of clause (3) of section 125 CrPC do not provide mode of discharging liability but as per these provisions no warrant can 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.

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In view of aforesaid it is clear that the impugned orders are suffering factual inaccuracy and the same are not in accordance with law, hence liable to be set aside. Accordingly the impugned orders are set aside

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and matter is remanded back to the Family Court concerned to pass an order afresh after providing reasonable opportunity of hearing to both the parties. As the matter pertains to maintenance thus, the Family Court is directed to expedite the proceedings of the case and to decided the same as early as possible.

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Application under section 482 CrPC is allowed in above terms.

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Order Date :- 18.3.2025 Anand

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Digitally signed by :- ANAND VERMA High Court of Judicature at Allahabad

Sarvesh Kumar v. State of U.P. and Another

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