The High Court dismissed a revision petition challenging an order directing the arrest of a husband for failing to pay interim maintenance arrears. The Court held the order was sustainable as the maintenance was final and arrears accrued monthly.
The revision petition was dismissed; the impugned order directing arrest was upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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ORDER RESERVED ON:17.07.2017 ORDER DELIVERED ON:07.11.2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.11.2017
CORAM :
THE HONOURABLE MR. JUSTICE R.SURESH KUMAR
Crl.R.C.No.599 of 2017 and
Crl.M.P.No.5321 of 2017
V.B.Kamalanathan .. Petitioner
Vs.
1.K.Jayasree
2.Minor. K.Chandra Bommi
3.Minor. K.Chandra Lakshmi
(Minors 2 & 3 are rep. By their mother
and natural guardian (1 st respondent) ... Respondents
Petition filed under Section 397 r/w 401 of Cr.P.C against the order dated 24.03.2017 made in M.P.No.198 of 2016 in M.P.No.495 of 2012 in M.C.No.145 of 2012 on the file of the II Addl. Family Court, Chennai.
For Petitioner : Mr.A.S.Narasimhan For Respondents : Mr. Packiaraj for Ms. P.J.Anitha
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O R D E R
This revision case has been filed challenging the order passed by
the II Additional Family Court at Chennai at 24.3.2017 made in M.P.No.198 of 2016 in M.C.No.145 of 2012.
(i) The petitioner herein is the husband and the first respondent is his wife and the second and third respondents are his minor children. The wife filed a maintenance case in M.C.No.145 of 2012 on the file of the aforesaid Court under Section 125 of Code of Criminal Procedure (hereinafter referred to as, 'the Code'). During the pendency of the said maintenance case, since the husband did not maintain the wife and children, and due to which, since the wife and children were suffering to maintain themselves, the wife filed an interim application in M.P.No.495 of 2012 in the said M.C.No.145 of 2012 seeking for interim maintenance from the husband.
(ii) M.P.No.495 of 2012 seeking for interim maintenance was heard and decided by the learned Judge by order dated 02.03.2015. In the said order, the learned Judge directed the husband to pay a sum of Rs.10,000/- each for the wife and two children, altogether a total sum of Rs.30,000/- per month as interim maintenance to the wife and
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children, from the date of the petition i.e., from 01.08.2012.
(iii) Inspite of the said order of interim maintenance having been passed by the learned Judge as set out above, since the husband did not come forward to make the payment, as alleged by the wife, the wife filed yet another petition in M.P.No.198 of 2016 in M.P.No.495 of 2012 in M.C.No.145 of 2012 under Section 125(3) of the Code to seek for a direction directing the husband to make the payment of arrears for the period between 01.08.2012 and 30.4.2015, i.e., for 33 months at the rate of Rs.30,000/- per month and a total sum of Rs.9.30,000/-. This petition under Section 125(3) of the Code was filed by the wife on 21.5.2015.
(iv) It seems that in this petition i.e., M.P.No.198 of 2016, since
the husband did not appear before the Court on the hearing date, the learned Judge by order dated 17.3.2016, ordered arrest of the husband, by 31.5.2016.
(v) Challenging the said order of arrest passed by the learned Judge by order dated 17.3.2016, the husband preferred a revision case before this Court in Crl.R.C.No.624 of 2016 on the ground that the husband was not given a chance of filing a counter before the Court below, and since the learned Judge passed a cryptic order of arrest without disclosing any reason for the same, the said revision
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i.e., Crl.R.C.No.624 of 2016 was heard and finally decided by this Court by order dated 29.4.2016 whereby, the learned Judge of this Court set aside the said order of arrest and remanded the matter to the trial Court to rehear the issue by affording an opportunity of filing a counter and to adduce evidence if any, by both sides and thereafter, to pass a reasoned speaking order, afresh in a qualitative and quantitative terms in a dispassionate manner and that too with open mind by adhering to the principles of natural justice within a period of four weeks from the date of receipt of a copy of that order.
(vi) Only pursuant to the orders of this Court, the husband had filed counter in M.P.No.198 of 2016. In the said counter, the husband raised a primary objection that M.P.No.198 of 2016 was not maintainable, because, as against the order passed in M.P.No.495 of 2012 directing the husband to pay a sum of Rs.30,000/- to the wife and children it was already challenged before this Court in Crl.RC.No.516 of 2015 and the same was pending before this Court and in view of the same, since no finality was reached in the said Crl.RC.No.516 of 2015, the present petition in M.P.No.198 of 2016 filed seeking direction from the trial Court to the husband to make a payment of arrears of interim maintenance which was a subject matter in the said Crl.RC.No.516 of 2015.
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(vii) This apart, the husband also claimed in the said counter affidavit that, the husband is paying a sum of Rs.7,500/- to the wife and children for maintenance and also the husband claimed that the said payment of Rs.7,500/- is being made to the wife and children by way of daily payment of Rs.250/- which was originally of Rs.200/subsequently, has been enhanced to Rs.250/- and since this factor is an admitted one on the side of the wife and children, this should be taken into account by the trial Court, while deciding the petition in M.P.No.198 of 2016.
(viii) The learned Judge after having taken into account the defence taken through the counter affidavit filed by the husband, as well as the claim made by the wife and children in the MP, has ultimately, decided the M.P.No.198 of 2016 in M.C.No.145 of 2012 by order dated 24.3.2017, wherein, the learned Judge by giving reasons rejected the contentions of the husband and issued warrant against the husband for the purpose of collection of arrears of maintenance and accordingly, directed that the husband be arrested by 25.4.2017. Aggrieved over the said order passed by the learned Judge in M.P.No.198 of 2016 dated 24.3.2017 directing to arrest the husband / petitioner, he has come out with this present revision case with the aforesaid prayer.
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“ Issue notice to the respondents returnable in two weeks. Private notice is also permitted.
Post after six weeks.”
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petitioner / husband and he did not also chose to appear before this Court on that day. Therefore, it was directed to be listed on 06.7.2017. On that day, the learned counsel appearing for the petitioner submitted before this Court that, if a week time is given, his client would explore the possibility of settling the matter by showing some progress including the compliance of the conditional order passed by this Court on 18.4.2017. Accordingly, case was posted on 12.7.2017. However, on that day, since no progress had been shown by the petitioner / husband, it was posted for taking up the matter for final hearing and accordingly, on 14.7.2017, the following order was passed by this Court:
“When the matter was taken up for hearing today, as has been submitted by the learned counsel for the petitioner in the earlier hearing date, he has not come forward with any proposal from the petitioner either to comply with the conditional order already passed by this Court, or to make any substantial payment at least to take care of the school going children, whose school fees is yet to be paid. When this aspect was specifically pointed out by this Court, Mr.A.S.Narasimhan, learned counsel for the petitioner submits that
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the petitioner is not able to pay any more and is also not in a position to comply with the conditional order passed by this Court.
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the revision would be decided on merits, without reference to their submissions.
Post on 17.07.2017, immediately after admission cases.”
learned counsel appearing for both sides.
petitioner / husband would make his submissions stating that, the order impugned passed by the learned Judge, is erroneous because, if at all the learned Judge wants to pass order for enforcement of the order of interim maintenance passed by the learned Judge, he should have first explored the possibility of issuing the warrant for levy of the amount as contemplated under Section 421 of the Code by attachment
and sale of any movable property belonging to the offender and also to issue a warrant to the collector of the District authorising him to realize the amount as arrears of land revenue of the movable or immovable property or both of the petitioner / husband. However, without resorting to invoke Section 421 of the Code, the learned Judge straight away issued a warrant and directed the arrest to be made against the petitioner / husband. Therefore, the said order impugned is flawed in this regard, he submitted.
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Government, Home Department, Fort St. George, Chennai and others. By relying upon this Judgment, the learned counsel would contend that there is a vast difference in respect of the procedure to be adopted while petition is filed under Section 125(3) of the Code and
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the petition is filed under Section 128 of the Code. In view of the limitation of one year period to recover the arrears of maintenance, the present petition styled to be seeking direction of arrears of maintenance for 33 months, cannot be construed as a petition within the meaning of Section 125(3) of the Code. Therefore, it should be treated only as a petition under Section 128 of the Code.
the respondent / wife would state that there is no dispute that the petitioner and the first respondent are legally wedded husband and
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wife and out of their wedlock, they are blessed with two female children, who are the second and third respondents. It is also not in dispute that the said wedlock and marital relationship of husband and wife is still subsisting and therefore, under law, it is the duty of the petitioner / husband to maintain the wife and children. Since the petitioner / husband did not maintain the wife and children and in fact the wife meted with harassment at the hands of the petitioner / husband, she was forced to approach the court of law by filing the case for maintenance, as the wife as well as the children were not able to maintain themselves, and they do not have any source of income.
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remanded back to the trial Court for rehearing.
husband filed revision in Crl.RC.No.516 of 2015, the same was subsequently, dismissed by this Court, by order dated 12.9.2016, as against which, the petitioner filed Special Leave Petition before the Hon'ble Supreme Court and the same also was dismissed.
paid for longer period. Inorder to recover the same, the first
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respondent rightly invoked Section 125(3) of the Code and thereby filed the present petition.
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dismissed, he contended.
by the petitioner / husband before this Court, the same was dismissed on 12.09.2016 itself, hence, it is the duty of the petitioner / husband
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to make the payment of interim maintenance as directed by the trial Court. However, since the petitioner / husband failed to make the payment for more than two years, the respondents have rightly approached the trial Court by filing the present miscellaneous petition in M.P.No.198 of 2016, which was after contest, was ordered through the impugned order, dated 24.3.2017 whereby, the learned Judge, by issuing warrant, directed the arrest of the petitioner / husband by
25.4.2017.
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relevant provision of the Code, namely, Section 125(3) which reads
thus:
“(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 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:”
above, no doubt, it is fixed one year period for recovery of any amount
due under the said Section. On the application to be made in this regard, whether such claim can be made for the due within a period of
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one year or beyond that, is concerned, there can be no doubt that the interim maintenance since has been ordered to be paid every month, it is the recurring due. Therefore, whenever application is filed under Section 125(3) of the Code, it shall be construed that the amount payable or become due by way of maintenance or interim maintenance, if it is claimed by way of a petition filed under Section 125(3) of the Code, it can be ordered to be recovered and for the said purpose, the measures contemplated under the sub section to issue a warrant and even to send the person / defaulter into prison can very well be invoked.
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amount which becomes due within one year period to the filing of the petition under the proviso and if at all the petition is filed for recovery of arrears of maintenance beyond the one year period from the date of petition filed under the proviso, the learned Judge can pass orders of issuance of warrant and can make a sentence against the defaulter, as even a default for one month would entitle the wife to claim the recourse of action under sub section (3) of Section 125. Therefore, looking from any angle, this Court is of the considered view that the order passed by the learned Judge, which is impugned herein, cannot be a defective one within the meaning of proviso to subsection (3) of
Section 125 as claimed by the petitioner / husband.
that here in the case in hand, since the petition was admittedly filed under Section 125(3) of the Code, certainly, the period of limitation
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under provision to sub section (3) of Section 125 would be an embargo and therefore, by applying the ratio of the Judgment (cited supra), the order impugned can be faulted.
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Judge, has explained the principle, where, it was held that before adverting to issuance of warrant for arrest, the procedure contemplated under Section 421 of the Code should have been explored. Therefore, there can be no quarrel with regard to the said principle enunciated in the said case by the learned Judge and since the facts of the said case is entirely different from the present case, that Judgment would not in any way advance the cause of the petitioner / husband in this case to wriggle out from the clutches of law. Moreover, it is the fact that, as against the order of interim maintenance, admittedly, the petitioner / husband filed a revision case before this Court and during the pendency of the said revision, he filed a counter before the trial Court in the present miscellaneous petition i.e., M.P.No. 198 of 2016 stating that the revision was pending before the High Court i.e., this Court and thereby, since it did not reach any finality, M.P.No.198 of 2016 should be dismissed.
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and this claim made by the learned counsel for the respondents was not disputed by the learned counsel appearing for the petitioner.
was given by this Court while disposing the earlier Crl.R.C.No.516 of 2015, to dispose the maintenance case by the trial Court within a time frame, the same was not disposed because of the interim orders of maintenance and the revision cases filed by the petitioner / husband.
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case is pending consideration before the trial Court, the legislature thought it fit to make a provision under the second proviso to Section 125(1) of the Code which reads thus:
“[Provided further that the Magistrate
may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.]
maintenance case, that should be decided within 60 days from the date of service of notice to the respondents. Therefore, when application is filed for interim maintenance and once it is ordered and
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the said order also reached finality, there can be no excuse or reason on the side of the person against whom such order is passed and in this case, such excuse cannot be granted to the petitioner / husband for non compliance of such order of interim maintenance. In such situation, as the petitioner / husband admittedly failed to make a payment of interim maintenance for several months without sufficient cause, certainly, the learned Judge has got a power to invoke sub section (3) of Section 125 provided, if any application is filed to that effect. Here, such application was filed by the respondent / wife and there is no sufficient cause given by the petitioner / husband and therefore, the learned Judge rightly invoked the provision under sub section (3) of Section 125 and issued warrant against the petitioner / husband.
husband is arrested, he would be produced before the concerned Judge, where either before such arrest or at the time of arrest and production before the learned Judge, if at all the petitioner / husband come forward to settle the arrears of maintenance, he need not be sentenced to jail for a maximum period of one month, as such measure is possible for the learned Judge while invoking sub section
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(3) of Section 125.
invoking the revisional power of this Court under Section 397 r/w 401 of the Code, the order impugned can be testified as to whether the order impugned suffers any illegality or impropriety and if no such illegality or impropriety is attached to the order, the same need not be interfered with by this Court by invoking its revisional power under Section 397 r/w 401 of the Code.
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passed a conditional order of making 50% of the payment of arrears which was admittedly not complied with by the petitioner / husband, moreover, the petitioner / husband has not shown any plausible reason for non payment of arrears and therefore, for this reason also, he deserves to meet the situation, which he is facing pursuant to the order impugned, as the same, is a justifiable legal measure to be followed within the meaning of sub section (3) of Section 125 of the
Code. 40. Therefore, for all these reasons, this Court finds that the impugned order is sustainable and accordingly, it requires no interference. Hence, this revision case is dismissed without any costs. Consequently, connected miscellaneous petition is closed.
Index:Yes/No 07.11.2017 Internet: Yes/No kua Note: Issue order copy on 08.11.2017 To II Additional Family Court, Chennai.
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R.SURESH KUMAR,J.
Kua
Crl.R.C.No.599 of 2017
07.11.2017
3 issues framed by the court
Whether the Magistrate's order directing arrest for non-payment of interim maintenance under Section 125(3) CrPC was lawful.
Whether the claim for arrears of maintenance exceeding 12 months violated the limitation period under the proviso to Section 125(3) CrPC.
Whether the High Court should interfere with the trial court's order imposing arrest for maintenance default.
Colour shows how this judgement treated each authority
S.T. Prabakar Vs. Secretary to Government, Home Department, Fort St. George, Chennai and others.Distinguished¶69
2011 (1) CTC 355
Crl.R.C.No.624 of 2016Referred¶24
2 provisions across 1 enactments
V.B. Kamalanathan
K. Jayasree
Minor K. Chandra Bommi
Minor K. Chandra Lakshmi
R.Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
