POONGODI & ANR.versusTHANGAVEL

                        . [2013] 9 S.C.R. 862


A                        POONGODI & ANR.
                                   v.
                           THANGAVEL
                (Criminal Appeal No. 1542 of 2013)
                       SEPTEMBER 27, 2013
B
           [SUDHANSU JYOTI MUKHOPADHAYA AND
                   RANJAN GOGOi, JJ.]

        CODE OF CRIMINAL PROCEDURE, 1973
c
        s. 125(3), first proviso - Order of High Court curtailing the
  entitlement of appellants to maintenance to a period of one
  year prior to the date of filing of application - Held: The
  application of appellants was in continuation of their earlier
D application - The provision does not create a bar nor does it
  in any way affect the entitlement of a claimant to arrears of
  maintenance - Order of High Court set aside - Respondent
  directed to pay the entire arrears of maintenance due to
  appellants and to continue to pay monthly maintenance.

E       s. 125(3), first proviso - Explained.
      In an application filed uls. 125(3) CrPC by the
  appellants, namely, the wife and the son of the
  respondent, for a directions to the respondent to pay
F maintenance for the period 04.02.1993 to 05.02.2002, the
  High Court held that as the petition was filed on
  05.02.2002, under the first proviso to s. 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.
G from 04.02.2001 to 05.02.2002.

        Allowing the appeal, the Court

       HELD: 1.1 The first proviso to s. 125(3) CrPC does
  not create a bar nor does in any way affect the entitlement
H                             862
         POONGODI & ANR. v. THANGAVEL                   863


of a claimant to arrears of maintenance. What the proviso       A
contemplates is that the procedure for recovery of
maintenance u/s. 125(3) CrPC, namely, 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         B
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. [Para 4]                                             c
    1.2 The application dated 05.02.2002 filed by the
appellants u/s. 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 s. 125(3),
therefore, did not extinguish or limit the entitlement of the   D
appellants to the maintenance granted by the trial court
[Para 7]

     1.3 The order of the High Court is set aside and the
respondent is directed to pay the entire arrears of             E
maintenance due to the appellants commencing from the
date of filing of the maintenance petition i.e. 4.2.1993 and
continue to pay the monthly maintenance as directed in
the judgment. If the order is not complied with by the
respondent, the trial court is directed to issue a warrant      F
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 s. 125(3) CrPC. [Para
8]
   Ku/dip Kaur v. Surinder Singh and Anr. 1988 (3) G
Suppl. SCR 762 = (1989) 1 SCC 405; Shantha alias
Ushadevi anti Another v. B. G. Shivananjappa 2005 (1)
Suppl. SCR 153 = (2005) 4 sec 468 - relied on.

                            863                                 H
    864      SUPREME COURT REPORTS                  [2013] 9 S.C.R.


A         Shahada Khatoon & Ors. v. Amjad Ali & Ors. (1999) 5
    sec 672 - referred to.
                          Case Law Reference:
      1988 (3) Suppl. SCR 762        relied on              para 5
B
      2005 (1) Suppl. SCR 153        relied on              para 6
      (1999) 5 sec 672                referred to           para 6
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
c   No. 1542 of 2013.

        From the Judgment and Order dated 21.04.2004 of the
    High Court of Madras in Crl. R.C. No. 620 of 2003.

          Movita, R. Nedumaran for the Appellants.
D
       V. Kanagaraj, Promila, S. Thananjayan for the
    Respondents.

          The Judgment of the Court was delivered by

E         RANJAN GOGOi, J. 1. Delay condoned. Leave granted.

        2. The appellants are the wife and son of one Thangavel.
  By an order dated 12.01.1998 passed by the learned trial court
  each of the appellants have been granted maintenance @
F 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 respondent
G 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. No.394/2002) was filed by
  the appellants claiming maintenance for the period 4.2.1993
  to 5.2.2002. The same was allowed by the learned Magistrate
H
          POONGODI & ANR. v. THANGAVEL                         865
               [RANJAN GOGOi, J.]

on 31.12.2002 against which the respondent had filed Crl. R.C.         A
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 5.2.20Q2, 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            B
5.2.2002. Accordingly, the High Court directed the respondent
(revision petitioner before it) to pay the arrears for the aforesaid
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                c
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 the date of filing
of the Crl. M.P. No. 394/2002, the appellants have filed this
appeal.
                                                                       D
     3. We have heard learned counsel for the parties.

       4. A reading of the order dated 21.4.2004 passed by the
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            E
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        F
a claimant to arrears of maintenance. What the proviso
contemplates is that the procedure for recovery 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        G
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.
                                                                       H
    866       SUPREME COURT REPORTS                    [2013) 9 S.C.R.


A        5. The decision of this Court in Ku/dip Kaur v. Surinder
    Singh and Anr. 1 may be usefully recalled wherein this Court 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
B   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
c         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
D         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
E         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
          comply with the order. It would indeed be strange to hold
          that a person who "without reasonable cause" refuses to
F         comply with the order of the court to maintain his neglected
          wife or child would be absolved of his liability merely
          because he prefers to go to jail. A sentence of jail is no
          substitute for the recovery of the amount of monthly
          allowance which has fallen in arrears. Monthly allowance
G         is paid in order to enable the wife and child to live by
          providing with the essential economic wherewithal. Neither
          the neglected wife nor the neglected child can live without
          funds for purchasing food and the essential articles to

H   1.   (1989) 1 sec 405.
           POONGODI & ANR. v. THANGAVEL                        867
                [RANJAN GOGOi, J.]
      enable them to live. Instead of providing them with the A
      funds, no useful purpose would be served by sending the
      husband to jail. Sentencing to jail is the means for
      achieving the end of enforcing the order by recovering the
      amount of arrears. It is not a mode of discharging liability.
      The section does not say so. Parliament in its wisdom has B
      not said so. Commonsense does not support such a
      construction. From where does the court draw inspiration
      for persuading itself that the liability arising under the order
      for maintenance would stand discharged upon an effort
      being made to recover it? The order for monthly allowance c
      can be discharged only upon the monthly allowance being
      recovered. The liability cannot be taken to have been
      discharged by sending the person liable to pay the monthly
      allowance, to jail. At the cost of repetition it may be stated
      that it is only a mode or method of recovery and not a
                                                                       0
      substitute for recovery. No other view is possible. That is
      the reason why we set aside the order under appeal and
      passed an order in the following terms:
                   II


                                                                      E
      6. In another decision of this Court in Shantha alias
Ushadevi and Another v. 8. G. Shivananjappa 2 it has been
held that the liability to pay maintenance under Section 125
CrPC is in the nature of a continuing liability. The nature of the
right to receive maintenance and the concomitant liability to pay F
was also noticed in a decision of this Court in Shahada
Khatoon & Ors. v. Amjad Ali & Ors. 3 • 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 G
was acknowledged by this Court in Shahada Khatoon (supra).

      7. The ratio of the decisions in the aforesaid cases

2.   c2oos) 4 sec 468.
3.   (1999) s sec 672                                                 H
    868       SUPREME COURT REPORTS                [2013] 9 S.C.R.

A   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
s   the entitlement of the appellants to the maintenance 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
  order passed by the High Court needs to be interfered with by
C 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
D from the month of September, 2013 payable on or before 7th
  of October,. 2013 and thereafter continue to pay the monthly
  maintenance on or before the 7th of each successive month.
  If the above order of this Court is not complied with by the
  Respondent, the learned Trial Court is directed to issue a
E 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.
F                                                 Appeal allowed.
    R.P.