Jurisprudential Analysis

Rajasthan High Court’s Powerful Judgment on Recovery of Maintenance – Simplifying the Enforcement of Rights of Aggrieved Women

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Recently, Hon’ble Justice Sandeep Mehta of Rajasthan High Court in the case “In Re A Ref. U/s 395 Cr.P.C. By District And Sessions Judge, Pali v Unknown”[i], took note of the plight of the aggrieved women who were continuously suffering due to the non-payment of maintenance by their husband as well as due to complicated procedure of recovery envisaged under Section 125(3) of CrPC. Hon’ble Justice through their powerful and effective judgment removed the confusion that was existing in the minds of the Higher Courts throughout the country as well remedied the possible lacuna in the language of the section. This Judgement also explained the real ratio of the Supreme Court Judgment which was misinterpreted by defaulters in order to evade their liability. This short article tries to bring out a chronological summary of the judgment.

Legal Questions

This case came before Hon’ble Rajasthan High Court when a reference was forwarded by Learned Sessions Judge, Pali under Section 395 CrPC. The below mentioned legal questions came for consideration before Hon’ble Rajasthan High Court:

“(1) Whether the Magistrate is precluded to pass a sentence, in an application under section 125(3) Cr.P.C., beyond a period of one month in pursuance of Execution Warrant on a consolidated application made within one year from the date on which the amount became due?

(2) Whether the order passed by the Hon’ble Supreme Court in the case of Shahada Khatoon operates as binding precedent or it qualifies as a mere observation in light of the arguments advanced by the appellant in that case?

Understanding the Provision

The issues involved in the reference revolve around interpretation of Section 125 (3) CrPC which reads as below:-

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 allowances 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.

Splitting the provision for better understanding, it becomes clear that it operates in four parts:

  • Non-compliance of the order of maintenance by the person directed to pay monthly maintenance,
  • Every breach of the order,
  • Issuance of warrant for levying the amount due in the manner provided for levying fines and
  • Sentencing such person for the whole or any part of each month’s allowance, imprisonment for a term which may extend to one month.

Meaning thereby, if the person ordered to make payment of maintenance fails to do so, the Magistrate shall be empowered to issue warrant for recovery of the maintenance due in the manner provided for levying fines and may also sentence such person for the whole or any part of each month’s allowance to imprisonment for a term which may extend to one month.

Situation before Shahada Khatoon’s[ii] Case

It was almost unanimous view of all High Courts before the decision of Shahada Khatoon that it is open for the Magistrate to award sentence in excess of one month in case of several months of default. Lahore High Court in one of the cases turned down and held illegal a challenge regarding cumulative warrant for the whole arrears and cumulative sentence of six months[iii]. Full Bench of the Allahabad High Court in the case of Emperor v Beni[iv], held that the intention of the Legislature was to empower the Magistrate after execution of one warrant to sentence a person, who has defaulted in the payment of maintenance ordered under Section 488 of CrPC to imprisonment for a period of one month in respect of each month’s default and that the section does not enjoin that there should be a separate warrant in respect of each term of imprisonment for one month. In other words, where arrears have been allowed to accumulate, the Court can issue one warrant and impose a cumulative sentence of imprisonment[v].” Nagpur High Court in Emperor v Budhoo Mandal[vi], held that one month’s imprisonment is not the maximum sentence that can be awarded by the Magistrate and where more than one month’s maintenance allowance remains unpaid, imprisonment for more than one month can be awarded by the Magistrate. Similarly in Kantappa v Sharanamma[vii], it was ruled that the Magistrate has to compute the term of imprisonment with reference to each month’s imprisonment and then pass a cumulative sentence. If the default is more than one month then the imprisonment can be for as many months subject to maximum of 12 months.[viii]

The Shahada Khatoon[ix] Judgment

The controversy surrounding the above framed Legal Issues arose due to the wrong interpretation of above mentioned judgment. It would be better to reproduce the relevant para of the said judgment here:

“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 Subsection (3) of Section 125 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 of non-compliance of the order of the Magistrate the wife can approach again to the Magistrate for similar relief. By no stretch of imagination the Magistrate can be permitted to impose sentence for more than one month.”

After Effects of the Judgement

Different arguments and interpretations arose due to this Judgment. One line of arguments is that the powers conferred upon the Court by Section 125(3) CrPC cannot be circumscribed/ curtailed by the Supreme Court in the view of Shahada Khatoon case. They argue that ratio of the said judgment has to be considered in context of the peculiar facts which were under consideration before Hon’ble the Supreme Court. They also urge that maintenance under Section 125 CrPC is meant to provide monthly sustenance to the destitute wife, children and parents. Accordingly, breach of the monthly maintenance order would constitute a separate cause of action for every default and hence, the Court undoubtedly has the power to award to the defaulter, separate imprisonment which may extend to one month or until the payment if sooner made. So the person, in whose favour the order of maintenance is passed (‘the claimant’), has the right to seek enforcement thereof within one year and in such a case, if a composite application is filed by the claimant for recovery of accruing maintenance for a period of 12 months, the Court would be empowered to award separate sentences of upto one month for each breach. Moreover they also contend that the Section 125 CrPC is meant for providing a bare minimum financial support/ stability to the destitute and as such, it needs to be interpreted in a purposive manner and even in case of every breach/ non-compliance of the order of Magistrate, the wife can approach the Magistrate again for the similar relief and thus, in case of repeated breaches running upto 12 months, it would be absolutely justified for the Court to entertain a composite application and to award separate sentences of one month for each default and in that manner, a balanced approach can be struck.

The other line of argument is that there can’t be any composite application for default of many months and similarly on one application only one month imprisonment can be awarded by court. For every breach/ non-compliance of the order of Magistrate, the aggrieved can approach the Magistrate again for the similar relief. So there can’t be a compound order of imprisonment for multiple defaults. Maximum by a single order Magistrate can only direct imprisonment upto one month if payment in pursuance of recovery warrant is not done.

Legislative History of the Provision

The provision of Section 125(3) of the Criminal Procedure Code is similar to subsection (3) of Section 488 of the Criminal Procedure Code of 1882[x], while the Section 316 of old Criminal Procedure Code 1861[xi] has certain significant differences. Comparing the two provisions, it becomes clear that in Section 488 of the Code of 1882, the Legislature added the words: “may sentence such person for the whole or any part of each month’s allowance remaining unpaid”. Addition of words of each month’s allowance” were significant. Earlier provisions of Section 316 of the Code of 1861 could have been interpreted as providing for the limitation on the power of the Magistrate to impose sentence for a term not exceeding one month regardless of the extent of the default. However, the Legislature made the position clear in the later enactment by adding words “each month’s allowance”. Modification in the provision was thus to remove a possible confusion.

Legal Question 2 – Correct Interpretation of the Judgment

In Shahada Khatoon & Ors. vs Amjad Ali & Ors. (1999) 5 SCC 672 all that has been laid down is that the Magistrate has no power to impose sentence beyond one month for one default. However, in cases of multiple defaults, it has been clearly stipulated that for the next default, the wife can approach the Magistrate again for similar relief. However, the said Judgment does not set out any straight jacket formula that the wife cannot file a consolidated application for default of 12 months which in the Hon’ble Court’s opinion is permissible as per the proviso to Section 125 (3) CrPC.

The clear intention of the legislature is that order of maintenance is stipulated to provide maintenance on a monthly basis, so every single breach of the monthly maintenance order gives rise to a distinct cause of action calling for issuance of a warrant for levying of the amount and a discretion is given to the Magistrate that in the event of non-payment, the person ordered may be sentenced to imprisonment for a term which may extend to one month for each month’s default. The application for recovery of the maintenance amount can be filed within a period of 12 months from the date it becomes due. The section does not provide that the claimant must file separate applications for recovery of each month’s allowance.  The said view is otherwise also in accordance with the specific language of Section 125(3) CrPC. Nowhere in judgment, has it been stipulated that the Magistrate/Court cannot entertain a consolidated application for multiple defaults or that separate sentences of imprisonment cannot be passed on the basis of a single application for recovery of multiple monthly instalments of maintenance. Moreover it is well settled that the decisions of the Apex Court are not to be interpreted like statutes. In the case of P.S. Sathappan v Andhra Bank Ltd.[xii], it was held that judgment of the Supreme Court must be read as a whole and the ratio therefrom is required to be culled out from reading the same in its entirety and not only a part of it.

Legal Question 1 – Consolidated Applications & Multiple Sentences

The proviso to Section 125 (2) stipulates that an application has to be filed to the Court to levy the amount due and that such application should be made within a period of one year from the

date on which the amount becomes due. The legislature has made it clear that even though the maintenance, which is awarded under Section 125 Cr.P.C., is recurring every month, an option has been given to the claimant to file an application for the recovery of the amount within a period of one year from the date on which it becomes due. There is no requirement in law that a separate application should be filed for every month’s maintenance. Thus, while passing the judgment Hon’ble Rajasthan High Court held that there is no doubt that the claimant/claimants can file a consolidated application for levying the amount due for the period of preceding 12 months and there is no impediment there against. A consolidated application would rather facilitate the procedural wrangles for the claimant and also ease the burden on the Courts. Dealing with separate applications for each month’s default/dues would unnecessarily complicate the issues because it would require repetition of the entire procedure right from the issuance of recovery warrants against the defaulter for each month’s allowance and to wait for service thereof.

The question can be looked from a slightly different angle. If for each month of default of payment of maintenance, the wife were to file separate applications before the Magistrate, surely, it would be open for the Magistrate to pass separate orders of sentences each not exceeding one month. If that be so, would it not be open for the wife to file one consolidated application for every month’s default instead of filing separate application for each month of arrears and in such a situation, would it not be open for the Magistrate to pass one consolidated order of sentence upto a maximum one month for each month of default in payment of maintenance? The answer obviously is in the affirmative as long as the application is made by the wife within one year from the date on which the amount has become due as provided under subsection (3) of section 125.

Hon’ble the Larger Bench of the Gujarat High Court in the case of Suo Motu v State of Gujarat[xiii], stated that limitation on the power of the Magistrate to impose imprisonment for a term not exceeding one month, has to be viewed in the background of the purpose for which such imprisonment is provided. The Legislature never intended that regardless of the extent of the default on the part of the husband, the Magistrate can impose sentence only upto one month. True interpretation of section 125(3), would be that for each month of default in payment of maintenance, it is open for the Magistrate to sentence the defaulting person to imprisonment for a period of one month or until payment if sooner made.

Without any doubt, for default of 12 previous months, the Court may simultaneously issue separate warrants for levying every month’s due amount and if, despite service, the defaulter fails to make the payment, then separate sentences of imprisonment upto one month may be passed for every month’s default. Needless to say, the sentences would have to be passed by maintaining the sequence in the descending order of defaults limited upto previous 12 months. Magistrate is at liberty to 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.

Conclusion

Finally, Hon’ble Justice Sandeep Mehta on behalf of the court concluded that the claimant/claimants would be entitled to file a consolidated application for recovery of previous 12 months dues. The consolidated application shall be treated as 12 individual claims for recovery of monthly allowances of previous 12 months and the Court will deal with the application in 12 separate compartments and shall issue separate warrants of recovery of every month’s dues, subject to the condition that the application shall not be entertained for maintenance dues beyond a period of 12 months. In the event of non-payment/ non-recovery of the maintenance, the Court may sentence the defaulter to separate terms of imprisonment of upto one month each for every month’s default. The point that has to be noted that for every month’s default separate warrants needs to be issued for recovery and in similar manner separate orders of imprisonment needs to be passed for sentencing the offender for each month’s default.

[i] D.B. CRIMINAL REFERENCE NO.2/2020

[ii] Shahada Khatoon & Ors. vs Amjad Ali & Ors., (1999) 5 SCC 672

[iii] AIR 1919 Lahore 197

[iv] AIR 1938 Allahabad 386

[v] Ma Tin Tin v. Maung Aye, AIR 1941 Rangoon 135;

[vi] AIR 1949 Nagpur 269

[vii] AIR 1967 Mysore 81

[viii] Moddari Bin v. Sukdeo Bin, AIR 1967 Calcutta 186

[ix] Shahada Khatoon & Ors. vs Amjad Ali & Ors., (1999) 5 SCC 672

[x] “The Magistrate may, for every breach of the order issue a warrant for levying the amount due in the manner hereinbefore 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.”

[xi] “The Magistrate may, for every breach of the order by warrant, direct the amount due to be levied in the manner provided for levying fines; or may order such person to be imprisoned with or without hard labour for any term not exceeding one month.”

[xii] AIR 2004 SC 5152

[xiii] 2009 Cri.L.J. 920


ABOUT THE AUTHOR

Harshit Sharma

Harshit is a trainee Civil Judge-cum-JMFC at Rajasthan Judicial Services, and a doctoral candidate (PhD) at NLU Jodhpur. He can be reached at harshitsharmanluj@gmail.com.

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