Praveen v. Sabitha and Minor Pranitha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY, THE 22ND DAY OF MARCH 2017/1ST CHAITHRA, 1939** **RPFC.NO. 108 OF 2016 () ------------------------** **AGAINST THE ORDER DATED 08-12-2015 IN MC 215/2013 OF FAMILY COURT, IRINJALAKUDA** **PETITIONER/RESPONDENT: ----------------------** **PRAVEEN, S/O.KUNDOLL BALAKRISHNAN, MAMBRA DESOM, KALLUR THEKKUMURI VILLAGE, MUKUNDAPURAM TALUK.** **BY ADV. SRI.T.N.MANOJ** **RESPONDENT(S): --------------** **1. SABITHA, W/O.PRAVEEN, THANKULAM DESOM, KURIVILASSERY VILLGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **2. MINOR PRANITHA, D/O.PRAVEEN, REPRESENTED BY MOTHER SABITHA , W/O.PRAVEEN, THANKULAM DESOM, KURIVILASSERY VILLGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **R1 BY ADVS. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH** **THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 22-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **DST** **“CR”** ## **B. SUDHEENDRA KUMAR,J.** **= = = = = = = = = = = = = = = = = R.P.(FC) No. 108 of 2016** **- - - - - - -- - - - - - - - - - - - - -** Dated this the 22[nd] day of March, 2017 **==> picture [86 x 16] intentionally omitted <==** The petitioner is the respondent in M.C. No.215 of 2013 on the files of the Family Court, Irinjalakuda. The respondents herein are the petitioners before the court below. 2. The respondents herein claimed an amount of Rs.3,000/- to the first respondent and Rs.4000/- to the second respondent towards monthly maintenance. The respondents herein contended that the petitioner herein is a Driver by profession, earning Rs.20,000/- per month as wages. The petitioner herein refuted the allegation of the respondents. 3. The court below directed the petitioner herein to pay Rs.3,000/- to the first respondent and Rs.4000/to the second respondent towards their monthly maintenance. 4. Heard both sides. 5. The learned counsel for the petitioner has submitted that the contentions of the petitioner were **R.P.(FC) No. 108 of 2016** ## **-: 2 :-** struck off by the court below on the mere reason that the petitioner did not pay the arrears of maintenance due to the respondents herein. 6. It is clear from the judgment impugned that the court below struck off the contentions of the petitioner herein on the reason that the petitioner herein did not pay the arrears of maintenance. 7. Now the question to be considered is as to whether the court below was justified or not in striking off the contentions of the petitioner herein on the reason that the petitioner herein did not pay the arrears of maintenance. 8. Section 125 of the Code of Criminal Procedure, 1973 ( _for short 'the Cr.P.C.')_ is a measure of social justice and is specifically enacted to protect women, children and infirm parents and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions of Section 125 Cr.P.C. **R.P.(FC) No. 108 of 2016** ## **-: 3 :-** provide a speedy remedy to those women, children and destitute parents, who are in distress. The dominant purpose behind the benevolent provisions contained in Section 125 Cr.P.C. is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation. 9. Section 125(1) empowers the court to order maintenance or interim maintenance of wife, child or parents. Sub-section (3) of Section 125 Cr.P.C. provides as to how the order of maintenance is to be enforced. It will be beneficial to read sub-section (3) of Section 125 Cr.P.C., which is extracted hereunder: _“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_ **R.P.(FC) No. 108 of 2016** ## **-: 4 :-** _warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:_ _Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:_ _Provided further that xxxx._ ” 10. It is clear from sub-section (3) of Section 125 Cr.P.C. that if any person fails to comply with the direction of the court to pay the maintenance or interim maintenance, the 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 default to imprisonment for a term which may extend to one month or until payment, if sooner made. The first proviso to sub-section (3) of Section 125 Cr.P.C. provides that no warrant shall be issued for the recovery of any amount due, unless application is made to the court to levy such amount within a period of one **R.P.(FC) No. 108 of 2016** ## **-: 5 :-** year from the date on which it became due. Section 125 (3) Cr.P.C. does not create any bar on the entitlement of a claimant to arrears of maintenance or interim maintenance. What the proviso contemplates is that the procedure for recovery of maintenance under Section 125 (3) Cr.P.C., namely, by construing the same to be a levy of a fine and the detention of the defaulter in custody, would not be available to a claimant who had slept over his/her rights and has not approached the court within a period of one year commencing from the date on which the entitlement to receive maintenance has accrued. However, in such a situation, the ordinary remedy to recover the amount of maintenance, namely, a civil action would still be available. The above view is supported by the decision of the Hon'ble Apex Court in _Poongodi and Another v. Thangavel_ [2013 KHC 4784 = AIR 2014 SC 24]. 11. The Apex Court in _Kuldip Kaur v. Surinder Singh and Another_ [1989 KHC 316:AIR 1989 SC 232] held that the provision of sentencing under Section 125(3) **R.P.(FC) No. 108 of 2016** ## **-: 6 :-** Cr.P.C. is a “mode of enforcement” as distinguished from the “mode of satisfaction” of the liability, which can only be by means of actual payment. The Apex Court in _Kuldip Kaur's case_ (Supra) held in paragraph 6 this:- _“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.”_ The sentencing is the means for achieving the end of enforcing the order for recovering the amount of arrears and it is not a mode of discharging the liability. It is only a mode or method of recovery and not a substitute for recovery. It is clear from the above discussion that **R.P.(FC) No. 108 of 2016** ## **-: 7 :-** the court can enforce the order of the court granting maintenance or interim maintenance only as provided under Section 125(3) Cr.P.C. and not by striking off the contentions. The striking off the contentions of the petitioner is neither a mode of enforcement nor a substitute for recovery. For the said reason, the court below was not justified in striking off the contentions of the petitioner herein on the reason that the petitioner herein did not pay arrears of interim maintenance. If the petitioner fails to pay the arrears of maintenance as directed by the court, the court shall be at liberty to enforce its order as provided under Section 125(3) Cr.P.C. and not by striking off the contentions of the petitioner as had been done by the court below. Since the court below had struck off the contentions of the petitioner herein, the petitioner could not adduce evidence to substantiate his contentions. Since the court below was not justified in striking off the contentions of the petitioner herein, **R.P.(FC) No. 108 of 2016** ## **-: 8 :-** the order impugned cannot be said to be legal, proper and correct and consequently, the same cannot be sustained. 12. In the result, this R.P.(FC) stands allowed, setting aside the order in M.C. No.215 of 2013 on the files of the court below and the matter is remitted to the court below to pass order afresh in M.C. No.215 of 2013 in accordance with law, affording reasonable opportunity to both sides of being heard. 13. The petitioner shall deposit an amount of Rs.40,000/- (Rupees Forty thousand only) before the court below within 10 days from the date of receipt of a copy of this order by the court below and another amount of Rs.40,000/- (Rupees Forty thousand only) after 15 days thereafter towards arrears of interim maintenance to the respondents herein as agreed by the learned counsel for the petitioner. If the petitioner deposits any amount, the first respondent herein shall be at liberty to withdraw the **R.P.(FC) No. 108 of 2016** ## **-: 9 :-** same from the court below. If the petitioner fails to deposit the amount as directed above, the court below shall take steps to enforce the above direction of payment of interim maintenance. Sd/- **B. SUDHEENDRA KUMAR JUDGE** DST **//TRUE COPY//** **P.A. TO JUDGE**