R.SUBBIAH,J.
The petitioner has come foward with the present petition seeking a writ of Habeas Corpus to direct the respondents 1 and 2 to produce the detenu, namely, M.Rajkumar @ Muthaiah, son of Muthaiah, aged 38 years, before this Court and set him at liberty who is confined in Central Prison, Madurai, based on the order passed in Cr.M.P.No.97 of 2017 in M.C.No.33 of 2010 on the file of the Family Court, Madurai.
2. Facts-in-nutshell leading to the filing of the present petition, are hereunder:
2.1. The petitioner married one Maheswari on 13.12.1999 and due to the wedlock, the respondents 3 and 4 were born. However, due to misunderstanding between the petitioner and his wife, they got divorce by virtue of the decree in H.M.O.P.No.115 of 2007 passed by the learned Sub Judge, Srivilliputtur. Thereafter, the mother of the minor respondents 3 and 4 filed a petition on http://www.judis.nic.in 26.03.2010 under
Section 125 Cr.P.C., in M.C.No.33 of 2010 seeking 3 maintainance for the minor respondents 3 and 4 and the learned Judge, Family Court, Madurai, by order dated 23.02.2017, directed the petitioner to pay a sum of Rs.3,000/- (Rupees Three Thousand only) each per month towards maintenance to the minor respondents 3 and 4. Whereas the petitioner paid a sum of Rs.10,000/- (Rupees Ten Thousand only) towards interim maintenance, however, he could not pay the maintenance amount as directed by the Family Court, because he has to maintain his aged parents with his meagre income earned as a hair stylist.
2.2. The total arrear amount for 83 months would be around Rs.4,84,000/- (Rupees Four Lakhs and Eighty Four Thousand only) and hence, the mother of the minor children filed a petition under
Section 128 Cr.P.C., in Cr.M.P.No.97 of 2017, to recover the same and the Family Court, Madurai, by order dated 29.06.2017, ordered the petitioner to undergo 15 days simple imprisonment for one month's default, totalling 41 ½ months for non-payment of arrears for 83 months. Accordingly, the petitioner has been incarcerated from 29.06.2017 which, according to the petitioner, is against the provisions of
Section 125(3) Cr.P.C. Further, the revision filed by him with the delay of 237 days could not be numbered on account of non-payment of cost of Rs.5,000/- (Rupees Five Thousand only) and therefore, finding no other alternative remedy, the petitioner has filed the present Habeas Corpus Petition. http://www.judis.nic.in 4
3. Since the Registry has entertained a doubt as to the maintainability of this petition, the matter has been directed to be listed before this Court under the caption “For Maintainability”.
4. When the matter is taken up for hearing, the learned Counsel for the petitioner submitted that the present Habeas Corpus Petition is maintainable for the reason that as and when some rights of a prisoner who is in lawful custody, are deprived of, the Court can intervene with the same, as held by the Honourable Supreme Court in Coffin v. Reichard reported in AIR 1978 Supreme Court 1675.
5. He further submitted that failure to comply with the requisite procedure would be fatal to the legality of the execution of any act or of the passing of any order by any one authorised by law and in the case on hand, the petitioner has been incarcerated for more than the period prescribed by
Section 125(3) Cr.P.C., and thus, the impugned order passed by the Family Court, is unsustainable and warrants interference, in the light of the dictum laid down by the Honourable Full Bench of this Court in Roshan Beevi v. Joint Secretary to the Government of Tamil Nadu and others reported in 1984 MLJ (Crl.) 363, wherein, it is held as follows:
http://www.judis.nic.in 5 “42. It is now well settled that failure to comply with the requisite procedure would be fatal to the legality of the execution of any act or of the passing of any order by any one authorised by law. The essence of this principle is reflected in Maneka Gandhi's case, (1978) 2 S.C.J. 312 : A.I.R. 1978 S.C. 597, wherein it has been held that the procedural safeguards are the essence of liberty.
43. In “Judicial Review of Administrative Action (Third Edition) by S.A. de Smith, at page 122, it is stated thus:
“The law relating to the effect of failure to comply with procedural requirements resembles an inextricable tangle of loose ends.”
44. As pointed out in Maneka Gandhi's case (1978) 2 S.C.J. 312 : A.I.R. 1978 S.C. 597, if the statute makes itself clear on any point, then no more question arises; but if the statute is silent, then the law, may, in a given case, make an application and apply the principle of natural justice.
45. In Mager and S.T.Mellons R.D.C. v. New Port Corporation, (1952) A.C. 189 at 191, Lord Simons said:
“The duty of the Court is to interpret the words that the Legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited.” http://www.judis.nic.in 6
6. In the light of the above judgments, the learned Counsel for the petitioner, thus, contended that the present Habeas Corpus Petition is maintainable in law as it is amply clear that the imprisonment, its duration can be validly tested by the arms of Habeas Corpus Petition. Here, in the case on hand, the impugned order has been put to challenge with regard to the imprisonment and its duration in consonance with
Section 125(3) Cr.P.C., and on that score alone, it is vitiated in law and the same is liable to be set aside.
7. The learned Counsel for the petitioner relied on the judgment of the Honourable Supreme Court in Shahada Khatoon and others v. Amjad Ali and others reported in 1999 Supreme Court Cases (Cri) 1029 and contended that the language of sub- section (3) of
Section 125 Cr.P.C., is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made and this power of the Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month and for breach or non-compliance with the order of the Magistrate, the wife can approach the Magistrate again for similar relief and by no stretch of imagination, the Magistrate has no power to impose http://www.judis.nic.in 7 sentence for more than one month. It is relevant to extract the said judgment hereunder:
“The short question that arises for consideration is whether the learned Single Judge of the Patna High Court correctly interpreted sub- section (3) of
Section 125 of CrPC by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned counsel for the appellants contends that the liability of the husband arising out of an order passed under
Section 125 to make payment of maintenance is a continuing one and on account of non-payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. We are unable to accept this contention of the learned counsel for the appellants. The language of sub-section (3) of
Section 125 Cr.P.C., is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month. For breach or non-compliance with the order of the Magistrate, the wife can approach the Magistrate again for similar relief. By no stretch of imagination, can the Magistrate be permitted to impose sentence for more than one month. In that view of the matter http://www.judis.nic.in the High Court was fully justified in passing the 8 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.”
8. It is the specific contention of the learned Counsel for the petitioner that the learned Judge, Family Court, is entitled to pass an order of sentence for only one month and as such, the impugned order passed by the learned Judge, Family Court, awarding the 41 ½ months of simple imprisonment is liable to be set aside and a heavy reliance has also been placed on the judgment of this Court in R.Kumaravadivel v. Lakshmi and others [Crl.R.C.Nos.1126 to 1128 of 2006, decided on 30.03.2007].
9. The learned Counsel for the petitioner drawing the attention of this Court to the judgment of this Court in S.T.Prabhakar v. The Secretary to Government, Home Department, Fort St. George, Chennai – 600 009 and others reported in 2011 (1) CWC 175, contended that admittedly, the petitioner failed to make payment of arrears of maintenance to the minor respondents 3 and 4 and while dealing with a petition under
Section 128 Cr.P.C., the next course to be adopted by the learned Judge, Family Court, is to issue a “Distraint Warrant” as provided under
Sections 421 and
431 Cr.P.C., either for attachment and sale of any movable property http://www.judis.nic.in belonging to the petitioner or to issue a warrant to the District 9 Collector authorising him to realise the amount as arrears from the movable or immovable property or both of the petitioner. However, in the present case on hand, none of the above procedures had been complied with by the learned Judge, Family Court, while passing the impugned order and therefore, the incarceration of the petitioner is illegal.
10. Further, the learned Counsel for the petitioner argued that whenever there is a failure of complying with the order for payment of maintenance, then the person would be liable to be sent to jail for a period of one month. However, this restriction of one month under sub-section (3) of
Section 125 Cr.P.C., cannot stand in the way even after one month period, if he continues to neglect the payment of arrears, once again the very same provision of
Section 125(3) Cr.P.C., can be invoked by the Court concerned, provided if the law is set in motion by filing an appropriate petition by the wife or the affected party. But, the Court cannot send a person to jail beyond the period of one month at a stretch or in one stroke for his failure to pay the maintenance of arrears. Sub-section (3) of
Section 125 Cr.P.C., does not provide for any longer incarceration for non- compliance of the order passed under the said Section beyond one month period and at the most, if the person against whom an order was passed to pay maintenance for his minor children, has not paid http://www.judis.nic.in 10 the same, he can be sent to jail for a maximum period of one month at a stretch or if he has come forward to pay the said amount before the one month period, the person can be released from such incarceration even before the one month period and thus, the impugned order passed by the learned Judge, Family Court, is vitiated in the eye of law. In this regard, he also referred to the judgment of this Court in R.Rajesh v. Kalaiyarasi reported in 2017 (3) MWN (Cr.) 216.
11. Since the mother of the minor respondents 3 and 4 filed the petition for maintenance under
Section 128 Cr.P.C., the learned Judge, Family Court, ought to have resorted to the procedures contemplated under
Section 128 Cr.P.C., by issuing a distraint warrant to the petitioner, however, the petitioner has been incarcerated as per
Section 125(3) Cr.P.C., which is illegal as per law, the learned Counsel for the petitioner concluded.
12. Per contra, the learned Additional Advocate General assisted by the learned Additional Public Prosecutor appearing for the State refuted the submissions of the learned Counsel for the petitioner and vehemently contended that the question of the detention of the petitioner in pursuance of the mode of enforcement of maintenance arrears cannot be equated with imprisonment http://www.judis.nic.in 11 awarded as punishment for the committing of offence. Hence, the detention of the petitioner is absolutely in accordance with law and not against the provisions of the Constitution of India. The detention of the petitioner was not in connection with any allegation or accusation of any actual or suspected or apprehended commission of any offence of a criminal or quasi-criminal nature, however, it was really an arrest for a civil debt in the process or the mode prescribed by law for recovery of arrears of land revenue.
13. Further, drawing the attention of this Court to the judgment of the Honourable Supreme Court in Janardhan Reddy v. State of Hyderabad reported in AIR (38) 1951 Supreme Court 217, the learned Additional Advocate General contended that when the conviction and sentence imposed has attained finality, there was no illegal custody and the Habeas Corpus Petition filed by the petitioner is not maintainable. In paragraph 25 of the said judgment, it is held as follows:
“25. The trend of decisions thus seems to be in favour of the view that if it should appear on the face of the return that a person is in detention in execution of a sentence on indictment on a criminal charge, that would be a sufficient answer to an application for a writ of habeas corpus. Assuming, however that it is open even in such cases to investigate the question of http://www.judis.nic.in jurisdiction as was held in In re Authers (1889) 22 Q 12 B.D. 345 : (58 L.J. M.C. 62) (Supra), it appears to us that the Learned Judges who decided that case went too far in holding that notwithstanding the fact that the conviction and sentence had been upheld on appeal by a Ct. of competent jurisdiction the mere fact that the trial Ct. had acted without jurisdiction to justify interference treating the appellate order also as a nullity. Evidently, the appellate Ct. in a case which properly comes before it on appeal, is fully competent to decide whether the trial was with or without jurisdiction & it has jurisdiction to decide the matter rightly as well as wrongly. If it affirms the conviction & thereby decides wrongly that the trial Ct. had the jurisdiction to try and convict it cannot be said to have acted without jurisdiction & its order cannot be treated as a nullity. It is true that there is no such thing as the principle of constructive resjudicata in a criminal case, but there is such a principle as finality of judgments which applies to criminal as well as civil cases & is implicit in every system, wherein provisions are to be found for correcting errors in appeal or in revn. Section 430, Criminal P.C and S. 355 of the Hyderabad Crl.P.C have given express recognition to this principle of finality by providing that "judgments & orders passed by an appellate Ct. upon appeal shall be final except in cases provided for in S.417 & Chap XXXII”.
26. ... In view of this fact the deprivation of life or liberty, upon which the case of the petns. is http://www.judis.nic.in founded, has been brought about in accordance with a 13 procedure established by law & their present detention cannot be held to be invalid.”
14. The learned Additional Advocate General further added that the present Habeas Corpus Petition is not at all maintainable in view of the judgment of the Honourable Supreme Court in Samrendra Beura v. Union of India and others reported in 2013 (14) Supreme Court Cases 672 wherein, it is held as under:
“12. In view of the aforesaid enunciation of law, there can be no scintilla of doubt that the pre-
trial detention cannot be set off against the sentence of imprisonment passed by the court Martial for the offence under
section 39 (a) which has been affirmed under
section 161 (1) of the Act and the period of sentence shall commence from the date when the original proceeding was signed by the presiding officer. Thus, there is no illegal detention warranting issue of writ of habeas corpus.”
15. He also relied on the judgment of the Honourable Supreme Court in B.R.Rao v. State of Orissa reported in AIR 1971 SUPREME COURT 2197 to contend that writ of Habeas Corpus cannot be granted to a person undergoing the sentence of imprisonment imposed on him by the competent Court. The relevant http://www.judis.nic.in portion reads as follows:
“We need only add that in case the petitioner is undergoing the sentence of imprisonment imposed on him by competent court then too writ of habeas corpus cannot be granted. This position is well settled”.
16. It is further contended by the learned Additional Advocate General that the present Habeas Corpus Petition is not maintainable when the detention is in accordance with procedure established by law and in the case on hand, the petitioner has been incarcerated as per order of the learned Judge, Family Court, Madurai in Crl.M.P.No. 97 of 2017 in M.C.No. 33 of 2017. Moreover, the petitioner without exhausting the effective alternative remedy of criminal revision challenging the impugned order passed in Crl.M.P.No. 97 of 2017 in M.C.No. 33 of 2017 on the file of the Family Court, Madurai, had chosen to file the present Habeas Corpus Petition and thus, it is a clear abuse of process of this Court. Though the petitioner filed a Criminal Revision challenging the impugned order in Crl.M.P.No. 97 of 2017 in M.C.No. 33 of 2017 with delay, the said delay was condoned subject to payment of Rs.5,000/- (Rupees Five Thousand only) towards costs, but, the petitioner failed to comply with the same and filed the present Habeas Corpus Petition alleging that the detention of the petitioner is illegal, which however, is not legally sustainable.
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17. With regard to the powers of the Court to impose sentence for more than one month under
Section 125(3) Cr.P.C., the learned Additional Advocate General relied on the following decisions:
17.1. In Smt.Kuldip Kaur v. Surinder Singh and another reported in AIR 1989 SUPREME COURT 232, the Honourable Supreme Court held as follows:
“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 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 http://www.judis.nic.in 16 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. The Parliament in its wisdom has not said so.
Common sense 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:
http://www.judis.nic.in 17 "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 aside. 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.
http://www.judis.nic.in 18 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 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.” 17.2. In Ramesh Chander Kaushal Vs Mrs. Veena Kaushal and others reported in AIR 1978 SUPREME COURT 1807, the Honourable Supreme Court while dealing with interpretation of
Section 125 Cr.P.C. observed at Para 9 thus:
“This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of
article 15 (3) reinforced by
Article 39. We have to doubt that sections of statues calling for construction by courts are not petrified print but vibrant words with social http://www.judis.nic.in functions to fulfill. The brooding presence of the 19 constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of the two alternatives which advances the cause- the cause of the derelicts”.
17.3. In (II) 2009 DMS 197 (FB), the Honourable Full Bench of the Gujarat High Court also affirmed similar view after considering the Hon’ble Supreme Court judgment in Shahada Khatoon and others v. Amjad Ali and others reported in 1999 Supreme Court Cases (Cri) 1029 : 1999 (5) Supreme Court Cases 672. The Honourable Full Bench meticulously analyzed the entire provision and judgment of the Honourable Supreme Court and various High Courts and held that the Honourable Supreme Court in Shahada Khatoon's case (cited supra) did not lay down the ratio that regardless of the extent of default on the husband in payment maintenance, the Magistrate can impose imprisonment of maximum of one month and it is observed as follows:
“In the light of the decision of the Supreme Court in the case of Shahada others V. Amjad Ali and others, (1999) 5 SCC 672, when a person is ordered to pay maintenance under sub section (1) of
Section 125 of the Code of Criminal Procedure, 1973 fails without sufficient cause to comply with such order, whether the learned Magistrate, in exercise of powers under Sub http://www.judis.nic.in 20 Section (3) of
Section 125 is empowered to sentence such person to imprisonment for a term exceeding one month”
21. For the reasons already stated, we find that the Supreme Court in Shahada Khatoon's case did not lay down the ratio that regardless of the extent of default on the part of the husband in paying maintenance, the Magistrate can impose imprisonment of maximum of one month. We are in respectful disagreement with the view expressed by some of the High Courts to the contrary.
22. In the result, question is answered in following terms:
Magistrate in exercise of powers under
section 125 of the Criminal Procedure Code is empowered to sentence a defaulting person for a term upto one month (or until payment if sooner made) for each month of default subject of course to the limitation provided in proviso to sub-section (3) of
section 125.In other words, it is open for the Magistrate to award sentence upto 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 will be applicable for each month of default. Magistrate can entertain separate applications from the person entitled to receive such maintenance or even entertain a common application for several months of default and pass appropriate order and, if found necessary, sentence a defaulting person upto a maximum one http://www.judis.nic.in month for each month of default. In all such cases, 21 however, period of limitation provided in sub-section (3) of
section 125 shall have to be borne in mind.” 17.4. In Crl.R.C.Nos. 123 & 124 of 2012 and Crl.R.C.(MD) No. 521 of 2010, this Court also followed the above judgment and rejected the contention of husband that order of Learned Judicial Magistrate imposing the sentence of imprisonment of more than one month.
17.5. In Shantha v. B.G.Shivananjappa reported in 2005 (4) Supreme Court Cases 468, the Honourable Supreme Court held that
Section 125 Cr.P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under
Section 125(1) is a continuing liability.
17.6. In Santhosh vs. State of Kerala [RPFC 34 of 2010], a Division Bench of the Kerala High Court also decided the said issue affirming the power of Learned Judicial Magistrate in imposing the sentence of one month imprisonment for each one month default after approval of the judgment of the learned single Judge reported in 2006 (4) Crimes 471.
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18. Placing reliance on the aforesaid decisions, the learned Additional Advocate General submitted that the maintenance order holder can file one application with cumulative arrears without restriction for one year on the account of recurring cause of action and the learned trial Judge has jurisdiction to impose imprisonment of maximum one month for each month due arrear and hence, the order of the learned Judge, Family Court, Madurai, imposing the sentence of imprisonment for 41 ½ months by fixing 15 days for each month's arrears is within his jurisdiction and there was no violation of any procedure and hence, the confinement of the petitioner is accordance with law and so there is no violation of constitutional provision to hold that the detention of the petitioner was illegal and hence, prayed for rejecting the present Habeas Corpus Petition as not maintainable.
19. Heard the submissions of the learned Counsel for the parties and perused the materials available on record, including the judgments relied on either side.
20. To the risk of repetition, we recall hereunder the indisputable facts on which the present Habeas Corpus Petition has been focussed before us:
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(a) The petitioner married one Maheswari on 13.12.1999. During the wedlock, the minor respondents 3 and 4 were born.
(b) As there is a rift in marital life, the petitioner and his wife got separated by virtue of the decree of divorce in H.M.O.P.No.115 of 2007 passed by the learned Sub Judge, Srivilliputtur.
(c) Later, the mother of the minor respondents 3 and 4 filed M.C.No.33 of 2010 seeking maintainance for the respondents 3 and 4.
(d) After contest, the petitioner was directed to pay a sum of Rs.3,000/- (Rupees Three Thousand only) each per month towards maintenance to the minor respondents 3 and 4.
(e) Though the petitioner paid a sum of Rs.10,000/- (Rupees Ten Thousand only) towards interim maintenance, he failed to pay the maintenance amount as directed by the Family Court, stating that he, being a hair stylist, was earning meagre income and found it hard to take care of his aged parents.
(f) Thus, the total arrear amount of maintenance accumulated around Rs.4,84,000/- (Rupees Four Lakhs and Eighty Four Thousand only) and in order to implement the award of maintenance, the mother of the minor children filed a petition in Cr.M.P.No.97 of 2017 under
Section 128 Cr.P.C., to recover the same.
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(g) Despite due opportunity was given to the petitioner to compy with the same, he expressed his inability to pay the arrears and thus, the Family Court, Madurai, sentenced the petitioner to undergo 15 days simple imprisonment for each month's arrears, totalling 41 ½ months for non-payment of the arrears of 83 months. Thus, the petitioner has been incarcerated from 29.06.2017.
(h) Having failed in his attempt to challenge the impugned order by filing a Criminal Revision with a delay of 237 days, the petitioner has approached this Court seeking a writ of Habeas Corpus alleging that the detention of the petitioner is illegal.
21. Before delving deep into the factual matrix in the background of rival contentions on the question of maintainability of this Habeas Corpus Petition, we feel it just and proper to reproduce hereunder Sections 125 and 128 Cr.P.C:
Section 125(3):
“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 fines, and may sentence such person, for the whole or any part of each month's allowance for the maintenance or the interim http://www.judis.nic.in maintenance and expenses of proceeding, as the case 25 may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend 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;” [emphasis supplied] Section 128:
“128. Enforcement of order of maintenance.- A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be, 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 for maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be, 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, or as the case may be, expenses, due.”
22. According to the learned Counsel for the petitioner, as per the proviso to
Section 125(3) Cr.P.C., it is explicitly clear that no warrant shall be issued for the recovery of any amount due under http://www.judis.nic.in 26 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. Therefore, as per
Section 125(3) Cr.P.C., a petition can be filed seeking to enforce the award of maintenance within one year from the date on whch it became due and payable. Whereas in the case on hand, the mother of the minor children filed the petition under
Section 128 Cr.P.C. Further, according to the learned Counsel for the petitioner, while dealing with the petition under
Section 128 Cr.P.C., the next course to be adopted by the Magistrate is to issue a “Distraint Warrant” as provided under
Sections 421 and
431 Cr.P.C., either for attachment and sale of any movable property belonging to the person concerned or to issue a warrant to the Collector of the District, authorising him to realise the amount as arrears from the movable or immovable property or both of the said person.
23. Considering the overall facts and circumstances of the case in the light of the decisions referred to by either side, the following points arise for consideration:
(i) Whether the impugned order passed by the learned Judge, Family Court, Madurai, sentencing the petitioner to undergo 41 ½ months of simple imprisonment for non-payment of arrears of maintenance for 83 months, is sustainable in law?
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(ii) Whether this Habeas Corpus Petition is maintainable in law?
24. Since both the points are inter-linked and inter-twined, they are taken up together for consideration. Point Nos.(i) and (ii):
25. Admittedly, the mother of the minor respondents 3 and 4 filed a petition on 26.03.2010 under
Section 125 Cr.P.C., in M.C.No. 33 of 2010 seeking maintainance for the minor respondents 3 and 4 and the learned Judge, Family Court, Madurai, by order dated 23.02.2017, directed the petitioner to pay a sum of Rs.3,000/- (Rupees Three Thousand only) each per month towards maintenance to the minor respondents 3 and 4. However, the petitioner committed default in paying the maintenance of Rs.3,000/- (Rupees Three Thousand only) each per month to the minor respondents 3 and 4 for 83 months and the total arrear amount comes to Rs.4,84,000/- (Rupees Four Lakhs and Eighty Four Thousand only). In order to enforce the award of maintenance, the mother of the minor respondents 3 and 4 filed a petition in Cr.M.P.No.97 of 2017 under
Section 128 Cr.P.C., before the Family Court, Madurai.
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26. The learned Judge, Family Court, Madurai, in a bid to execute the award of maintenance, entertained the said petition and afforded opportunity to the petitioner to make the payment. Despite the same, the petitioner could not pay the arrears and ultimately, the learned Judge, Family Court, Madurai, by order dated 29.06.2017, directed the petitioner to undergo 15 days simple imprisonment for each month's arrears, totalling 41 ½ months for committing default in paying the maintenance arrears for 83 months. As of now, the petitioner has been incarcerated eversince 29.06.2017.
27. The main contention of the learned Counsel for the petitioner is that as per
Section 125(3) Cr.P.C., the language of sub- section (3) of
Section 125 Cr.P.C., is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made and 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 and the Magistrate has no power to impose sentence for more than one month and hence, the impugned order passed by the learned Judge, http://www.judis.nic.in 29 Family Court, Madurai, sentencing the petitioner to undergo simple imprisonment for 41 ½ months for non-payment of arrears of maintenance for 83 months, is vitiated in the eye of law and therefore, the detention of the petitioner is illegal and prayed for setting him at liberty forthwith.
28. In support of the same, the learned Counsel for the petitioner consciously relied on the decision of the Honourable Supreme Court in Shahada Khatoon and others v. Amjad Ali and others reported in 1999 Supreme Court Cases (Cri) 1029, followed by this Court in the decision in R.Rajesh v. Kalaiyarasi reported in 2017 (3) MWN (Cr.) 216.
29. Further, it is the specific contention of the learned Counsel for the petitioner that sub-section (3) of
Section 125 Cr.P.C., clearly states that for recovery of an amount and after execution of the warrant such person may be imprisoned for a term of only one month or for the period until payment if sooner made and therefore, the said provision clearly lays down that there cannot be an indefinite order of imprisonment till the payment is made or for that matter, the period of imprisonment for one month cannot be stretched by virtue of any judicial order. In this context, he relied on the judgment of the Jharkhand High Court in Ramdhani Sah v. http://www.judis.nic.in 30 State of Jharkhand and another reported in 2017 CRI.L.J. 1416.
30. At this juncture, we aptly refer to the decision of the Honourable Supreme Court in Smt.Kuldip Kaur v. Surinder Singh and another reported in 1989 AIR 232, wherein it is held as follows:
“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 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.
http://www.judis.nic.in 31 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.”
31. The issue revolved around for consideration before us has http://www.judis.nic.in already been dealt with by the Honourable Full Bench of the Gujarat 32 High Court in Suo Motu v. State of Gujarat reported in II (2009) DMC 197 (FB), wherein the following question has been referred to the Full Bench:
“In the light of the decision of the Supreme Court in the case of Shahada Others v. Amjad Ali and others, (1999) 5 SCC 672, when a person is ordered to pay maintenance under Sub-section (1) of
Section 125 of the Code of Criminal Procedure, 1973 fails without sufficient cause to comply with such order, whether the learned Magistrate, in exercise of powers under Sub-
section (3) of
Section 125 is empowered to sentence such person to imprisonment for a term exceeding one month.” The legal controversy arising in that reference was whether in exercise of powers under sub-section (3) of
Section 125 of the Criminal Procedure Code, it is open for the Magistrate to sentence a defaulting husband in excess of one month when the default in making the payment exceeds one month. In paragraph 17, the Honourable Full Bench of the Gujarat High Court observed as under:
“17. From the decision of the Apex Court in the case of Shahada Khatoon (supra), it can be seen that it was a case wherein on behalf of the wife, it was contended that liability of husband arising out of the order passed under
Section 125 to make payment of maintenance is a continuing one and on account of non-payment, there has been breach of the order and it would, therefore, be open for the Magistrate to http://www.judis.nic.in 33 impose sentence on such a person continuing him in custody until payment is made. It was in this background that the Apex Court observed that language of Sub-section (3) of
Section 125 circumscribes the powers of the Magistrate to impose imprisonment for a period which may extend to one month or until the payment if sooner made. In the said decision, the Hon'ble Supreme Court did not lay down the proposition that under Sub-section (3) of
Section 125 of the Criminal Procedure Code, it is not open for the Magistrate to pass a consolidated order of sentencing the defaulting husband in excess of one month for several months of defaults.”
32. After considering various judgments rendered by different High Courts, the Full Bench of the Gujarat High Court, ultimately answered the reference as under:
“20. It can thus be seen that prior to the decision of the Apex Court in Shahada Katoon's case almost unanimously different High Courts of the country had held that limitation on power of the Magistrate to impose sentence upto a maximum of one month is relatable to each month of default in payment of maintenance and that subject to the limitation prescribed in proviso to Sub-section (3) of
Section 125, it is open for the Magistrate to impose sentence up to a maximum of one month for each month of default and that a composite order of this http://www.judis.nic.in nature can be passed by the Magistrate. It was only 34 after the Apex Court decided the case of Shahada Khatoon that various High Courts have taken somewhat different view.
21. For the reasons already stated, we find that the Supreme Court in Shahada Khatoon's case did not lay down the ratio that regardless of the extent of default on the part of the husband in paying maintenance, the Magistrate can impose imprisonment of maximum of one month. We are in respectful disagreement with the view expressed by some of the High Courts to the contrary.
22. In the result, question is answered in following terms:
sentence in defaulting person for a term up to one month for until payment if sooner made, for each month of default subject of course to the limitation provided in Proviso to Sub-section (3) of
Section 125. In other words, it is open for the Magistrate 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 will be applicable for each month of default. Magistrate can http://www.judis.nic.in entertain separate applications from the 35 person entitled to receive such maintenance or even entertain a common application for several months of default and pass appropriate order and, if found necessary, sentence a defaulting person upto a maximum one month for each month of default. In all such cases, however, period of limitation provided in Sub-section (3) of
Section 125 shall have to be borne in mind.””
33. Thus, in the light of the above judgment of the Honourable Full Bench of the Gujarat High Court, the legal position is very clear that the Magistrate can entertain separate applications from the person entitled to receive such maintenance or even entertain a common application for several months of default and pass appropriate order and, if found necessary, sentence a defaulting person upto a maximum one month for each month of default.
34. In the case on hand, the mother of the minor respondents 3 and 4 filed a petition on 26.03.2010 under
Section 125 Cr.P.C., in M.C.No.33 of 2010 seeking maintainance for the minor respondents 3 and 4 and the learned Judge, Family Court, Madurai, by order dated 23.02.2017, directed the petitioner to pay a sum of Rs.3,000/- (Rupees Three Thousand only) each per month towards http://www.judis.nic.in 36 maintenance to the minor respondents 3 and 4. However, the petitioner committed default in paying the maintenance of Rs.3,000/- (Rupees Three Thousand only) each per month to the minor respondents 3 and 4 for 83 months. Hence, the mother of the minor respondents 3 and 4 had filed a petition under
Section 128 Cr.P.C., for recovery of arrears of maintenance for 83 months well within the limitation period of one year from the date on which it became due, viz., 23.02.2017, on which date, the award of maintenance came to be passed in M.C.No.33 of 2010 and the learned Judge, Family Court, Madurai, thought it fit to impose a sentence of 15 days for each month's default and accordingly, by order dated 29.06.2017 ordered the petitioner to undergo 15 days simple imprisonment for one month's default, totalling 41 ½ months for non-payment of arrears for 83 months and thus, in the light of the judgment of the Honourable Full Bench of the Gujarat High Court in Suo Motu v. State of Gujarat reported in II (2009) DMC 197 (FB), we find no infirmity in the impugned order dated 29.06.2017 passed by the learned Judge, Family Court, Madurai, in Cr.M.P.No.97 of 2017 in M.C.No.33 of 2010, in and by which, the petitioner was ordered to undergo 15 days simple imprisonment for one month's default, totalling 41 ½ months for non-payment of arrears for 83 months. Therefore, Point No.(i) is answered accordingly.
http://www.judis.nic.in 37
35. In such view of the matter, we find that the contention of the petitioner that his detention was illegal, has no legs to stand. Thus, Point No.(ii) is answered accordingly.
36. In the result, the objection raised by the Registry of this Court is sustained and consequently, the present Habeas Corpus Petition in H.C.P(MD)SR.No.31625 of 2018 is, hereby, rejected as not maintainable.
Index :Yes/No (R.P.S.,J.) (B.P.,J.) Internet :Yes/No 09.01.2019 rsb To 1.The Commissioner, Madurai City, Madurai. 2.The Sub Inspector of Police, Jaihindpuram Police Station, Madurai. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. http://www.judis.nic.in 38 R.SUBBIAH,J. AND B.PUGALENDHI,J. rsb PRE-DELIVERY ORDER MADE IN H.C.P(MD)SR.No.31625 of 2018 09.01.2019 http://www.judis.nic.in