POONGADI vs. THANGAVEL

1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1542 OF 2013 (ARISING OUT OF SLP (CRL.) NO. 4654 OF 2005) Poongodi & Anr. ... Appellant(s) Versus Thangavel ... Respondent(s) J U D G M E N T RANJAN GOGOI, J. Delay condoned. Leave granted. 2. The appellants are the wife and son of one Thangavel. JUDGMENT By an order dated 12.01.1998 passed by the learned trial court each of the appellants have been granted maintenance @ Rs. 300/- per month w.e.f. 04.02.1993 i.e. date of filing of the application under Section 125 of the Code of Criminal Procedure (CrPC). As the respondent-husband had not complied with the order of payment, in a miscellaneous petition, i.e., C.M.P. No. 566/1998 filed by the appellant, the trial court by its order dated 21.07.1998 had sentenced the Page 1 2 respondent to imprisonment. The default in payment of maintenance was for the period 4.2.1993 to 4.2.1998. On 5.2.2002 another miscellaneous application (Crl.M.P.

was allowed by the learned Magistrate on 31.12.2002 against which the respondent had filed Crl. R.C. No. 620/2003. The High Court by its order dated 21.4.2004 held that as Crl.M.P. No. 394/2002 was filed on 5.2.2002, under the first proviso to Section 125(3) CrPC, the appellants were entitled to claim arrears for the period of one year preceding the date of filing of the application i.e. from 4.2.2001 to 5.2.2002. Accordingly, the High Court directed the respondent (revision petitioner before it) to pay the arrears for the aforesaid JUDGMENT period within two months failing which it was directed that an arrest warrant would be issued against the respondent and the sentence of imprisonment earlier imposed by the learned Magistrate would come into effect. As the aforesaid order of the High Court had curtailed the entitlement of the appellants to maintenance to a period of one year prior to Page 2 3 the date of filing of the Crl. M.P. No. 394/2002, the appellants have filed this appeal. 3. We have heard learned counsel for the parties.

High Court would go to show that the proviso to Section 125(3) CrPC has been construed by the High Court to be a fetter on the entitlement of the claimants to receive arrears of maintenance beyond a period of one year preceding the date of filing of the application under Section 125(3) CrPC. Having considered the said provision of the Code we do not find that the same creates a bar or in any way effects the entitlement of a claimant to arrears of maintenance. What the proviso contemplates is that the procedure for recovery JUDGMENT of maintenance under Section 125(3) CrPC, 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 Page 3 4 situation the ordinary remedy to recover the amount of maintenance, namely, a civil action would still be available. 5. The decision of this Court in Kuldip Kaur v. Surinder

has held the provision of sentencing under Section 125 (3) to be a “mode of enforcement” as distinguished from the “mode of satisfaction” of the liability which can only be by means of actual payment. Paragraph 6 of the report to the above effect, namely, that the mode of enforcement i.e. sentencing to custody does not extinguish the liability may be extracted below: “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 JUDGMENT 1 (1989) 1 SCC 405 Page 4 5

JUDGMENT ………. ….” Page 5 6 6. In another decision of this Court in Shantha alias 2 Ushadevi and Another v. B.G. Shivananjappa it has been held that the liability to pay maintenance under Section

liability to pay was also noticed in a decision of this Court in 3 Shahada Khatoon & Ors. v. Amjad Ali & Ors. . Though in a slightly different context, the remedy to approach the court by means of successive applications under Section 125(3) CrPC highlighting the subsequent defaults in payment of maintenance was acknowledged by this Court in Shahada Khatoon (supra). 7. The ratio of the decisions in the aforesaid cases JUDGMENT squarely apply to the present case. The application dated 05.02.2002 filed by the appellants under Section 125(3) was in continuation of the earlier applications and for subsequent periods of default on the part of the Respondent. The first proviso to Section 125(3), therefore did not extinguish or limit the entitlement of the appellants to the maintenance 2 (2005) 4 SCC 468 3 (1999) 5 SCC 672 Page 6 7 granted by the learned trial court, as has been held by the High Court. 8. In view of the above, we are left in no doubt that the

by us which we accordingly do. The order dated 21.04.2004 of the High Court is set aside and we now issue directions to the respondent to pay the entire arrears of maintenance due to the appellants commencing from the date of filing of the Maintenance Petition (M.C.No.1/1993) i.e. 4.2.1993 within a period of six months and current maintenance commencing th from the month of September, 2013 payable on or before 7 of October, 2013 and thereafter continue to pay the monthly th maintenance on or before the 7 of each successive month. JUDGMENT If the above order of this Court is not complied with by the Respondent, the learned Trial Court is directed to issue a warrant for the arrest of the respondent and ensure that the same is executed and the respondent taken into custody to suffer imprisonment as provided by Section 125(3) CrPC. The appeal is allowed. ..………………………..………………………J. Page 7 8 [SUDHANSU JYOTI MUKHOPADHAYA]

JUDGMENT Page 8