Judgment - Section 125 - Maintenance - Non Payment

Court: Kerala High Court

Bench: JUSTICE G. Sasidharan

Kuttappan Vs. Vijayamma & Ors. On 24 August 2001

Law Point:
Maintenance : Non-payment : Application has to be Filed within one Year of Amount Becoming Due.

JUDGEMENT

1. This petition is filed by the respondent in M.C. No. 31 of 1994 on the file of the Judicial Magistrate of the First Class II, Chengannur. Respondents 1 to 3 herein filed the above case under Section 125, Cr.P.C. claiming maintenance. The learned Magistrate passed an order directing the petitioner to pay maintenance at the rate of Rs. 200/- each. The petitioner filed revision in the Additional Sessions Court, Mavelikkara as Cr.R.P. No. 36 of 1996. The above revision was disposed of by the learned Additional Sessions Judge finding that there was no reason for interfering with the order of the learned Magistrate.

2. Respondents 1 to 3 filed an execution petition, C.M.P. No. 2755 of 1999 in the Court of the Judicial Magistrate of the First Class for realisation of maintenance arrears from 7.5.1996 to 7.7.1999 for respondents 1 and 3 and from 7.5.1996 to 7.11.1997 for the second respondent. The petitioner filed objection to the above petition contending that the execution petition is barred by limitation. C.M.P. No. 3224 of 1999 was filed by the petitioner under Section 127, Cr.P.C. for altering the order of maintenance on the ground that respondents 2 and 3 had attained majority. The learned Magistrate allowed the application by order dated 23.11.1999. On 19.11.2000, the learned Magistrate made Annexure V, order permitting execution of the order on finding that the execution petition is not barred by limitation. The above order is under challenge in this petition.

3. During the pendency of the Crl.R.P. No. 36 of 1996 in the Additional Sessions Court, there was an interim order of stay of execution of the order of the learned Magistrate. Challenging the order of the learned Additional Sessions Judge in revision, Crl. M.C. No. 4703 of 1997 was filed in this Court. No stay was granted by this Court. The revision petition in the Additional Sessions Court was dismissed on 4.11.1997 and Crl.M.C. No. 4703 of 1997 was dismissed on 1.3.1999. The petition for recovery of arrears of maintenance was filed on 12.7.1999. According to the petitioner, since maintenance from 7.5.1996 is claimed, the claim for realisation of arrears of maintenance is barred by limitation. Since there was no stay during the pendency of Crl.M.C. No. 4703 of 1997 in this Court, nothing prevented the respondents from filing execution application in the Court of the Magistrate claiming maintenance. But stay was granted by the Additional Sessions Court in the revision till 4.11.1997 and hence the respondents were prevented from taking steps for realisation of arrears of maintenance till 4.11.1997. Execution petition was filed by the respondents in the Court of the Magistrate one year after the disposal of the revision by the learned Additional Sessions Judge.

4. The first proviso to Sub-section (3) of Section 125, Cr.P.C. says that on warrant shall be issued for the recovery of any amount due under that 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. Sub-section (3) of Section 125, Cr.P.C. says that when there is failure to pay maintenance without sufficient cause, the Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines. Under the above sub-section, the Magistrate may also sentence such person for the whole or 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. Sub-section (3) of Section 125, Cr.P.C. gives the Court two powers, one to issue a warrant for levying the amount due in the manner provided for levying fines and, two, sentence a person for the whole or 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. In the first proviso to Sub-section (3) of Section 125, Cr.P.C. the prohibition is only in respect of issuing warrant as mentioned in the sub-section unless application is made to the Court to levy the amount within a period of one year from the date on which it became due. That proviso does not prohibit sentencing of the person who fails to pay maintenance as provided in the sub-section on an application made after one year of the date on which it became due. The question which arises for consideration is whether for sentencing the person, who is liable to pay maintenance, to undergo imprisonment for failure of payment of maintenance, issuance of warrant for levying the amount due in the manner provided for levying fines is a condition precedent. In the sub-section, it is stated that the power which the Court has to sentence a person for the whole or any part of each month’s allowance is for the amount remaining unpaid after the execution of warrants. That would indicate that the Court has power to sentence a person who fails to pay the amount which remains unpaid after execution of the warrants. The warrant that can be issued under Sub-section (3) of Section 125, Cr.P.C. is the warrant that a Magistrate can issue for levying fines. The term “warrant” used in the above sub-section does not mean warrant for arrest of the person who fails to pay maintenance.

5. Section 421, Cr.P.C. deals with the warrant which the Court can issue for levy of fines. When a person has been sentenced to pay fine, the Court can, for recovery of the fine, either issue a warrant for levy of the amount by attachment and sale of any movable property belonging to the offender or issue a warrant to the Collector of the District authorising him to realise the amount by way of arrears of land revenue from the movable or immovable property or both of the defaulter. The warrants the Magistrate can issue under Sub-section (3) of Section 125, Cr.P.C. are the warrants mentioned in Section 421, Cr.P.C. Only if on issuing the warrants mentioned above, the amount remains unpaid the Magistrate can sentence the person from whom amount is due to undergo imprisonment.

6. In Nithiyanandan v. Radhamani, 1980 KLT 537, this Court had occasion to consider the question whether sentence for undergoing imprisonment can be imposed on a person who fails to comply with the order to pay maintenance before issuing warrants as mentioned in Sub-section (3) of Section 125, Cr.P.C. This Court held that issue of warrant for levy of amount of maintenance due is a condition precedent to the sentencing of the defaulter to imprisonment. It was further held in the above decision that the sub-section clearly states that the Magistrate has first to proceed by issuing a warrant for levying the amount due in the manner provided for levying fines and before the order of imprisonment is passed, the Magistrate has to be satisfied that failure to comply with the order was without sufficient cause and also must have exhausted the two modes provided for in Section 421 of the Code. It is clear from the above decision that only if the Magistrate has exhausted the remedies available under Section 421, Cr.P.C. for realisation of the amount due towards maintenance and even after that the amount remains unpaid that he can sentence a person who committed default in payment of maintenance.

7. Learned Counsel appearing for the respondent placed reliance on the decision in Mohammed Kutty v. State of Kerala, 1984 KLT 835, in which it was held that the power of the Magistrate to sentence a person failing to comply with the order is not dependent upon the issue of the warrant is not a condition precedent to the jurisdiction of the Magistrate to sentence the person. The above decision was rendered by interpreting Section 421 which is similar to Sub-section (3) of Section 125, Cr.P.C. Relying on the above decision, it is submitted for and on behalf of the respondents that even though the Magistrate cannot issue warrant on the basis of an application filed after one year from the date on which the amount becomes due, the Magistrate can sentence a person to undergo imprisonment on an application filed after one year from the date on which the amount became due for the reason that the first proviso to Sub-section (3) of Section 125, Cr.P.C. only prohibits issue of warrants. It is true that the first proviso mentions only about issuance of warrant by providing that no warrant shall be issued for recovery of any amount unless application is given to the Court within a period of one year from the date on which the amount became due. But Sub-section (3) of Section 125, Cr.P.C. says that only if the amount remains unpaid even after issuing the warrant for levying the amount due in the manner provided for levying fines, the person from whom money is due can be sentenced to undergo imprisonment. The above proviso can be understood only to mean that sentence of imprisonment can be imposed only if on an earlier occasion warrants were issued and the amount remains unpaid. That proviso does not mean that for sentencing to undergo imprisonment, the application has to be filed within one year of the amount becoming due. In a case in which there was failure to realise maintenance on issuing warrant on an earlier occasion on application filed within one year from the date on which the amount became due if subsequently an application is filed for realisation of the amount and even if that application is filed beyond one year from the date on which the amount became due, the person from whom the amount is due can be sentenced to imprisonment. Here in this case, there was no attempt made for realisation of the amount of maintenance on an earlier occasion by issuing warrants as mentioned in Section 421, Cr.P.C. by filing application within one year from the date on which the amount became due and hence, it cannot be said that realisation of the amount is possible by sentencing the petitioner to undergo imprisonment as provided in Sub-section (3) of Section 125, Cr.P.C. The contention raised by the petitioner that the finding by the learned Magistrate in Annexure V order that the application for execution is not barred by limitation is not correct, is sustainable. Annexure V order is hence liable to be quashed.

This Crl.M.C. is allowed on quashing Annexure V order. Quashing of Annexure V order will not prevent the respondents in any way from realising the amount due to them, the claim for which is not barred by limitation.

Petition allowed.

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