Vijayan Nair v. Sunitha and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 27TH JUNE, 2008 / 6TH ASHADHA, 1930 WP(C).No. 20673 of 2004(J) --------------------------------- PETITIONER: ---------------- VIJAYAN NAIR, S/O. VASU PILLAI, KALAMITTATHIL HOUSE, VETTOOR P.O., VARKALA. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: - ------------------- 1. SUNITHA D/O. SAROJINI AMMA, - B.S.SADANAM, VENKULAM DESOM, EDAVA VILLAGE, VARKALA. 2. VINITHA ( A MINOR), REPRESENTED BY HER MOTHER SUNITHA, D/O. SAROJINI AMMA, B.S.SADANAM, VENKULAM DESOM, EDAVA VILLAGE, VARKALA. 3. SRUTHI ( A MINOR) REPRESENTED BY HER MOTHER SUNITHA D/O. SAROJINI AMMA, B.S.SADANAM, VENKULAM DESOM, EDAVA VILLAGE, VARKALA. SRI.T.M.ABDUL LATHEEF FOR R1 to R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX ## (WP(C) No. 20673 OF 2004) ## PETITIONER'S EXHIBITS: Ext.P1: Copy of the order dtd.29.8.02 in M.C.No.34/2001. - Ext.P2: Copy of the certificate issued by the Medical Board, Thiruvananthapuram. - Ext.P2(a): Copy of the photographs of the petitioner. - Ext.P3: Copy of the petition for execution filed by the respondent in Nov.2002 numbered as CMP 498/02 in MC 34/01. - Ext.P4: Copy of the petition dtd.25.2.2003 filed before the Family Court, Thiruvananthapuram. - Ext.P5: Copy of the petition submitted by the petitioner to the Hon'ble Chief Justice dtd.25.6.2003. - Ext.P6: Copy of the petition dtd.20.11.2003 filed by the petitioner before the Family Court, Thiruvananthapuram. - Ext.P7: Copy of the petition dtd.16.1.2004 filed by the petitioner under Section 127 of the Cr.P.C. - Ext.P8: Copy of the order dtd.4.6.2004 issued by the Family Court, Thiruvananthapuram. -True Copy- P.A.to Judge. ## **V.K.MOHANAN, J. --------------------------------------------W.P(C) No. 20673 of 2004 --------------------------------------------Dated this the 27[th] day of June, 2008** ## **J U D G M E N T** The respondent- husband in M.C.No.34 of 2001 on the file of the Family Court, Thiruvananthapuram is the petitioner in these proceedings. By invoking Article 227 of the Constitution of India, the petitioner challenges Ext.P8 warrant issued against him and he prays for a direction to issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P8 warrant. Another prayer in this writ petition is for the issuance of writ of mandamus or other appropriate writ or direction directing the Family Court, Thiruvananthapuram to pass orders on Ext.P7 petition before adopting any procedure towards execution of Ext.P1. 2. The brief facts leading to the above writ petition are as follows:- The first respondent is the wife of the petitioner and respondents 2 and 3 are their children. Their marriage was solemnized as per the custom prevailing among the Hindu religion on 13.9.1998. Subsequently, the marital **WP(C) NO. 20673 of 2004** ## **:-2-:** bondage between the petitioner and the first respondent have broken and culminated in filing a petition under Section 125 of the Code of Criminal Procedure before the Family Court, Thiruvananthapuram at the instance of the respondents herein. M.C.No.34 of 2001 was thus instituted before the Family Court, Thiruvananthapuram by the respondents herein claiming maintenance allowance at the rate of Rs.1,500/- to be payable by the petitioner herein to the first respondent herein and Rs.1,000/- each per month to respondents 2 and 3 herein. In the petition for maintenance under Section 125 of the Cr.P.C., several contentions are taken by the respondents including the financial capacity of the petitioner herein to maintain the respondents and his ability to pay the amounts as demanded in the claim petition. The petition was dated 24.1.2001. Pursuant to the notice received from the Family Court, the petitioner herein who is the sole respondent entered appearance. Thereafter, as per the order dated 22.6.2002, the petitioner herein was directed to pay interim **WP(C) NO. 20673 of 2004** ## **:-3-:** maintenance at the rate of Rs.250/- each per month to the respondents herein. As seen from the orders of the court below, the petitioner herein remained ex parte. Thereafter, by order dated 29.8.2002, the learned Family Court disposed of the petition (M.C.No.34 of 2001). From the judgment, it appears that no other evidence was adduced by the claimants besides the proof affidavit filed by the first petitioner. On the basis of the proof affidavit, the court below had, taking into account the income and status of the parties, fixed the maintenance allowance at the rate of Rs.500/- each per month to the respondents herein with effect from the date of petition, i.e., from 24.1.2001. By the above order, the first respondent- wife was allowed to recover the sum for herself and for and on behalf of the other respondents from the petitioner herein and his assets. The order of the court below is produced along with this writ petition as Ext.P1. 3. It is the case of the petitioner that he came to know about Ext.P1 order only when he received warrant ## **WP(C) NO. 20673 of 2004** ## **:-4-:** from the court below. It is the further case of the petitioner that he was working in Gulf for some time due to which he sustained very serious injury to his feet and because of this, he cannot stamp his feet on the ground. By producing Exts.P2 Medical Certificate and P2(a) photographs, the petitioner alleged that due to this serious injury, he is not in a position to move around and does not have any source of income. He had already undergone several surgeries for which he depends on others. So, according to the petitioner, he had absolutely no income and he depends on his aged parents for his daily needs and he is practically bedridden. His toes have been already amputated. According to the petitioner, he was set ex parte because of his inability and ailment as a result of which he was not in a position to travel to the court and to attend the proceedings. It is further averred in the petition that the first respondent herein had preferred Ext.P3 execution petiton dated 24.11.2002 and arrest warrant was issued under Section 421 of the Code of Criminal **WP(C) NO. 20673 of 2004** ## **:-5-:** Procedure. On getting warrant, he had approached the Family Court by filing Ext.P4 petition seeking time to pay the entire arrears. Ext.P4 is the petition filed before the court below seeking time to pay the arrears. But, according to the petitioner, without considering Ext.P4 petition, the petitioner was sentenced and sent to jail for nine months. It is the further case of the petitioner that while he was in jail, he had submitted Ext.P5 petition before the Honourable the Chief Justice of this Court. In Ext.P5, it is pointed out that the sentence imposed is too harsh, exorbitant and against the dictum laid down by the Supreme Court in the decision reported in **Shahada Khatoon and others** v. **Amjad Ali and others** [(1999) 5 SCC 672]. Thus, it is pointed out in Ext.P5 petition that the order of imprisonment for more than one month for non-compliance of the order of maintenance passed under Section 125(3) of Cr.P.C. is illegal and unsustainable. In the above petition, the circumstances in which the injury sustained by him and the amputation of both the toes are highlighted. According to the ## **WP(C) NO. 20673 of 2004** ## **:-6-:** petitioner, after filing Ext.P5 petition, he was released from jail after one month. 4. It is the further case of the petitioner that immediately after his release from the jail, he approached the Family Court, Thiruvananthapuram by filing two petitions viz., Ext.P6 for closing the execution proceedings upon Ext.P3 petition and Ext.P7 with a prayer to alter Ext.P1 order under the ground of changed conditions. But, according to the petitioner, without considering Exts.P4, P6 and P7, the court below had issued fresh warrant dated 4.6.2004. Ext.P8 is the fresh warrant. It is the above warrant being challenged in this writ proceedings. 5. I have heard the learned counsel for the petitioner as well as counsel for the respondents and also the learned Public Prosecutor, though the State is not a party to the proceedings. 6. Learned counsel for the petitioner submits that the course adopted by the court below in sending the petitioner to jail is absolutely illegal and the warrant ## **WP(C) NO. 20673 of 2004** ## **:-7-:** now issued is also without sanction of law. Learned counsel invited my attention to Sections 125(3) and 421 of the Code of Criminal Procedure. ## “ **125. Order for maintenance of wives, children and parents** .-- (1) xxxxxxx xxxxxxxxxx (2) xxxxxxx xxxxxxxxxx (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: 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 **WP(C) NO. 20673 of 2004** ## **:-8-:** notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.--If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.” (emphasis supplied) Section 421 in Chapter XXXII of the Code of Criminal Procedure coming under the head of fee/levy fee reads as follows:- “ **421. Warrant for levy of fine.--** (1)When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-- (a) issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be **WP(C) NO. 20673 of 2004** ## **:-9-:** recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. (2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of subsection (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.” (emphasis supplied) Referring to clause(a) to Section 421(1), counsel for the petitioner submits that sentencing the petitioner directly and sending him to imprisonment without resorting to clause (a) is illegal. It is pointed out that even when he was appeared before the court in pursuance of the warrant, he filed Ext.P4 petition seeking time by which he had conveyed his intention to pay the entire arrears ## **WP(C) NO. 20673 of 2004** ## **:-10-:** and in such circumstances, the court below ought not have sent him to jail, but time should have been granted for enabling him to make the payment on the strength of Ext.P1 order and upon Ext.P3 proceedings. However, the petitioner had already undergone for a period of one month as per the order of the court below. For the limited purpose of deciding the question involved in the proceedings, the consequence or legality of the order passed by the court below at that time need not be examined at this stage. 7. The learned counsel for the petitioner invited my attention to the decision of this Court reported in **Nithiyanandan** v. **Radhamani** (1980 KLT 537). In para 3 of the above judgment, this Court had stated that although the provision contained in section 125(3) is a piece of social legislation intended to prevent vagrancy and poverty of destitute or deserted wives, children and parents, the particular sub-section is one which affects the liberty of a citizen and this is an extra ordinary remedy given to a party in whose favour a monthly ## **WP(C) NO. 20673 of 2004** ## **:-11-:** allowance for maintenance has been awarded. This Court had further held that ordinarily a sentence of imprisonment is imposed only on an offender who has been found guilty and convicted of an offence. This Court declared that the failure to pay monthly allowance awarded by a court of law whether wilfully or otherwise is not an offence and as such, Section 421 of the Code spoke of an offender who had been sentenced to pay a fine. It was also held that an extraordinary power had been given to a Magistrate under Section 125(3) to sentence a person to imprisonment although he had not committed any offence or had not been found guilty of any offence and convicted in any case. This Court further observed that it was only because he failed without sufficient cause to comply with an order awarding maintenance that he was sent to jail and therefore, this sub-section should be construed strictly and within the permissible limits in favour of the person who had to be sent to jail depriving his liberty. After analysing Section 421 of the Cr.P.C., in para 5 of the **WP(C) NO. 20673 of 2004** ## **:-12-:** above judgment, this Court had held that the issue of warrant for the levy of the amount due is a condition precedent to the sentencing of the defaulter to imprisonment. In the light of the above decision, the learned counsel for the petitioner submits that in the present case, as the petitioner was seriously undergoing treatment for his injury on his both feet and his both toes were amputated and the petitioner was not in a position to properly defend the petition and also to pay the maintenance ordered by the Family Court as per Ext.P1 order, the petitioner should not have sent to jail. However, on his appearance before the court below, he had conveyed his intention to honour the order which was already passed by the Court by Ext.P1 and his readiness to pay the amount awarded. But, because of his ailment, he sought time so as to raise the fund. But the court below, without considering Ext.P4 petition, sentenced him to undergo imprisonment for nine months and sent him to jail. Learned counsel for the petitioner submits that the petitioner has an apprehension that he ## **WP(C) NO. 20673 of 2004** ## **:-13-:** will be again sent to jail by sentencing imprisonment as the remittance is not cleared so far. Learned counsel for the petitioner further submits that as pointed out earlier, the petitioner had preferred Exts.P6 and P7 petitions before the court below and so far the same has not been considered and no decision is taken on such petitions. The counsel challenges the above approach of the court below. It is also the case of counsel for the petitioner that there is serious lapse on the part of the court below in not considering Exts.P6 and P7 petitions in time and issuing Ext.P8 warrant without taking any decision on Exs.P4, P6 and P7 petitions. In support of the above contention, the learned counsel for the petitioner invited my attention to the decision of the Bombay High Court and the Panaji Bench (Goa) reported in **Ashok Yeshwant Samant** v. **Smt.Suparna Ashok Samant** (1991 Crl.L.J.766). In para 15 of the above decision, the Bombay High Court had held as follows:- “........... However, they have failed to realise that the proceedings u/S.127 Cr.P.C. are independent proceedings vis-a-vis the ## **WP(C) NO. 20673 of 2004** ## **:-14-:** recovery proceeding u/S.125(3) of Cr.P.C. Even assuming that the two can be taken up together then it is for the trial Judge to decide the manner in which the recovery proceedings should be initiated. If the Magistrate decides to give priority to the recovery proceedings rather than the proceedings for modification then he must follow the tenet of S.125(3) of Cr.P.C. which says that 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 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. I have particularly underlined the words “without sufficient cause” to emphasise that even while proceeding to direct recovery by a coercive process or for sending a defaulter to prison the trial Judge must afford opportunity to the defaulter to show cause why the warrant for levying the amount or for sentencing him to imprisonment should not be issued. It is only if the defaulter fails to show sufficient cause that he may then take the steps for recovery by coercive process or by sentencing to imprisonment.” **WP(C) NO. 20673 of 2004** ## **:-15-:** 8. In the very same decision, in paragraph 18, it was held as follows:- “18. It is needless to add that I see no provision either u/S.125(3) or S.127(1) Cr.P.C. to enable the trial Judge to proceed with these applications on a condition of deposit of part or whole of the arrears. The trial Judge must act according to the Code of Criminal Procedure and it has no other discretionary or inherent powers under the Code. The inherent powers u/S.482 are available only to the High Court. In the absence of any provision therefor, the learned trial Judge was wrong in directing the petitioner to deposit the amount of arrears as a condition precedent to proceed with his application for modification of the impugned order.” 9. Going by the averments contained in the writ petition and the materials produced in support of the averments, it appears that the petitioner is bedridden due to the injuries sustained in both the feet of his legs and also for the reason that both the toes were amputated. It is also the case of the petitioner that although he had been employed in Gulf, he had been ## **WP(C) NO. 20673 of 2004** ## **:-16-:** forced to return from Gulf due to the injury sustained by him and when the proceedings under Section 125 were initiated against him, he had no job and no income. Even for the treatment, he was depending his parents. The court cannot ignore the above facts, so also, the court below ought to have taken into consideration the above factual situation, especially when the court was approached by filing Ext.P4 petition. 10. The settled legal position does not warrant the approval of the stand adopted by the court below. In the present case, apart from the personal liberty of the petitioner as observed by the Court in the Nithyanandan's case (cited supra), the factual position regarding the ailment also ought to have been considered in favour of the petitioner before sending him to jail and even before issuing Ext.P8 warrant. 11. It is seen from the records that Ext.P1 order was passed on the basis of the averments and the proof affidavit filed by the first respondent and without giving an opportunity for controverting those allegations and ## **WP(C) NO. 20673 of 2004** ## **:-17-:** proof as the petitioner was set ex parte. The reason for non-appearance of the petitioner has already been discussed earlier and as such, it is crystal clear that Ext.P1 order is one which is without hearing the petitioner. At the time of passing Ext.P1 order and even at the time of sending the petitioner to jail and finally when Ext.P8 order was issued, the court below is not aware of the change of conditions occurred in the life of the petitioner as well as after passing Ext.P1 order. So far no order is issued by the court below either on Ext.P4 petition seeking time or on Ext.P6 petition filed with a prayer to close the execution proceedings upon Ext.P3 or Ext.P7 petition for alteration of Ext.P1 order on the ground of change of conditions. There is no provision either in the Cr.P.C. or in any other provision of any law by which the court can insist a defaulter to deposit the arrears which are due or part thereof, for the purpose of entertaining any petition under the above nature. As rightly pointed out by the Bombay High Court in the decision cited supra, depositing arrears or ## **WP(C) NO. 20673 of 2004** ## **:-18-:** part thereof is not a condition precedent for entertaining such a petition. Therefore, the Family Court, Thiruvananthapuram is bound to consider Exts.P4, P6 and P7 petitions before resorting to further proceedings for realisation of the amount awarded as per Ext.P1 order. 12. I have already discussed the operational limitation of the court resorting to the provisions of Section 421 for the realisation of payment or arrears ordered under the provisions of Section 125 of the Code of Criminal Procedure. In the light of the decision of this Court cited supra and in view of Section 421, especially clauses (a) and (b) of sub-section(1) of Section 421, the court has to invoke the proceedings contemplated therein before sentencing him to the imprisonment. As pointed out by this Court, resorting to such a course is imperative on the court in the light of the fact that sending a defaulter to imprisonment will amount to curtailment of his personal liberty. It is also a fact that the sentence of imprisonment for the default is **WP(C) NO. 20673 of 2004** ## **:-19-:** permissible only on exceptional circumstances viz., on the failure of the court's procedure to realise the amount by invoking the procedure contemplated as per clause(a) and (b) of Section 421(1). It is also relevant to consider subsection(3) of Section 125 which says that “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”. (emphasis supplied) The word ' _may'_ used in the above provision shows that the discretionary power is given to the court and in all cases, straight away the defaulter need not be sent to jail sentencing him for imprisonment. Coming to the ## **WP(C) NO. 20673 of 2004** ## **:-20-:** facts included in the case, the applicability of subsection(3) of Section 125 assumes importance. As discussed above, the question of sentencing the defaulter for imprisonment will come only at a stage when the procedure adopted by the court in clauses (a) and (b) of sub-section (1) of Section 421 fails. In the present case, as the order was passed remaining the petitioner herein ex parte, there is no material before the court below to ascertain whether the petitioner has got movable or immovable property for the attachment so as to realise the amount. No evidence is also adduced in this regard by the respondents. So the facts and circumstances involved in this case, make it a burden on the court to proceed with under Section 421(1)(a) and (b) for the realisation of the amount. In the present case, irrespective of the above settled legal position and statutory provision, the court below straight away sent the petitioner to jail and even now, warrant has been issued in that direction. Therefore, Ext.P8 is without sanction of law and the same is liable to be set aside. **WP(C) NO. 20673 of 2004** ## **:-21-:** 13. On a reading of Section 125(3), the question of issue of warrant for levying the amount for the breach of order arises only when the court is satisfied that the present order to pay the amount fails without sufficient cause or reason. In the present case, the facts and circumstances involved show that the petitioner has got sufficient cause for not paying the amount, of course the same is subjected to further proof. It is also pertinent to note that by filing Ext.P4 petition, the petitioner had submitted before the court that he is prepared to pay the amount, but he requires time to raise the amount because of his inability due the injury sustained to him. From the above facts, it appears that the warrant now issued is without sanctity of law and in violation of statutory provision relevant in this matter which itself is sufficient to hold that the court below has failed to apply its mind in the given facts and circumstances of the case. Therefore, Ext.P8 warrant is liable to be set aside. 14. In the light of the above discussion and facts and circumstances involved in the case, especially of the **WP(C) NO. 20673 of 2004** **==> picture [29 x 9] intentionally omitted <==** above settled position of law, Ext.P8 order is quashed and there will be a direction to the court below to consider Exts.P4, P6 and P7 petitions on merit and till an appropriate decision is taken upon the above petitions, all further proceedings upon Ext.P3 may be deferred. The writ petition is accordingly allowed. But, no order as to costs. **V.K.Mohanan, Judge** MBS/ ## **WP(C) NO. 20673 of 2004** **:-23-:** **V.K.MOHANAN, J.** -------------------------------------------Crl.R.P.NO. OF 200 ------------------------------------------- **O R D E R** DATED: 6-2008 ## **WP(C) NO. 20673 of 2004** **:-24-:**