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IN THE HIGH COURT OF BOMBAY
(Panaji Bench)
S.W. Puranik, J.
Ashok Yeshwant Samant ... Petitioner.
Versus
Suparna Ashok Samant (Smt.) and another... Respondents.
Criminal Writ Petition No. 38 of 1989, decided on 27-7-1990.
Advocates appeared :
S.K. Kakodkar, Senior Advocate with A.F. Diniz, for petitioner.
G.D. Kirtani, for respondent No.1.
Held-Proceedings under Section 127 are independent proceedings vis-a-vis recovery proceedings under Section 125 (3). Disposal of husbands application under Section 127 can not be conditional upon his clearing entire past maintenance. Provisions of Code to be strictly followed.
Section 125 (3)_Maintenance- Recovery of- Adoption of coercive process _ When can be adopled-Held, after affording opportunity to defaulter to show cause and defaulter failing to show sufficient cause cocrcive process can be adopted for recovery.
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 coersive process or sentencing to imprisonment.
Sections 127 and 482-Modification of maintenance amount-Deposit of arrears of maintenance amount-Held, petitioner cannot be directed to deposit arrears as a conditions precedent to proceed with his application for modification -Inherent powers under Section 482 can he exercised only by High Court and not by subordinate Courts.
There is no provision either under Section 125 (3) or Section 127 (1) Criminal Procedure Code 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 under Section 482 are available only to the High Court. In the absence of any provision therefore the learned trial Judge was wrong in directing the petitioner to amount of arrears as a condition precedent to proceed with his application for modification of the impugned order.
2. The petitioner who was not intimated about the ex-parte order failed to pay the maintenance awarded to the wife. The respondent/wife then approached the trial Court under section 125(3) of the Cr.P.C. for recovery of the amount awarded. Even the proceedings for attachment of property of the petitioner proved to be futile as there was no property worth attaching. in these circumstances the petitioner was sentenced to imprisonment by the trial Court, which imprisonment he suffered. It appears that subsequently again the arrears were due and defaulted by the petitioner, for which he had to suffer imprisonment on a second occasion.
3. Ultimately on 1st December, 1987 the petitioner filed application under section 127(1) of the Code of Criminal Procedure seeking modification of award of maintenance on the ground of change in circumstances during the intervening period. The respondent/wife was served and she filed her reply to the application. Thereafter the trial Judge proceeded to frame issues and called upon the parties to adduce evidence. The petitioner/husband led his evidence and also examined two witnesses on his behalf in support of the application for modification of the maintenance. The respondent/wife also entered the witness box and she was examined. It was at this stage and before the cross-examination of the respondent that the respondent's Counsel requested the Court not to proceed with the proceedings under section 127(1) inasmuch as the petitioner has failed to pay arrears of maintenance for the last three years from 1-1-85 to 29-2-88. The respondent's Counsel also pointed out that the wife had filed an application under section 125(3) of Cr.P.C. on 3-3-88 for the recovery of arrears of maintenance for the period 1-1-85 to 29-2-88. The respondent's Counsel relied on the judgment of the Supreme Court in (Smt. Kuldip Kaur v. Surinder Singh and another)1, reported in A.I.R. 1989 S.C. 232 and urged that the proceedings under section 127 Cr.P.C. preferred by petitioner/husband should be stayed or should be proceeded on the condition that all arrears are deposited by him in the Court.
4. The learned trial Judge by his order dated 6th July, 1989 concluded in favour of the respondent/wife and held that the application for change in circumstances to alter the maintenance allowance granted by the Court will proceed further subject to deposit of past arrears.
5. Feeling aggrieved by the said order the respondent carried a Revision No. 35/1989 before the Sessions Judge, South Goa at Margao. The said Revision was heard and decided on 27th September, 1989 confirming the order of the trial Court.
6. It is against these two concurrent orders of ordering deposit of the arrears as a condition precedent for proceeding with the application for modification under section 127 Cr.P.C. that the petitioner, being left with no alternative remedy has approached this Court under Article 227 of the Constitution. Shri Kakodkar, learned Counsel appearing for the petitioner with Shri Diniz, urged that both the courts below have completely misunderstood the case and have not applied their mind to the pleadings of the petitioner in his application under section 127 for modification. He also contended that the case law relied upon by the Courts namely the judgment of the Supreme Court in A.I.R. 1989 S.C. 232 was not at all applicable in the facts and circumstances of the present case. The said case merely decides that the liability of the husband against whom the maintenance amount has been awarded is never w
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