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2015 Supreme(Mad) 2838
IN THE MADURAI BENCH OF MADRAS HIGH COURT
S.VIMALA, J.
Muthuvel - Petitioner
Vs.
Nalini - Respondent
Crl.R.C.(MD)Nos.123 and 124 of 2012
Decided On : 08.09.2015
Advocate Appeared:
For petitioner: Mr. C.Godwin
For respondent: No appearance
The continuing liability of the husband to pay maintenance for the welfare and benefit of the wife and daughter.
Headnote:
maintenance - enforcement of order of maintenance - Section 128 Cr.P.C. - Section 125(3) Cr.P.C. - [Section 128 Cr.P.C., Section 125(3) Cr.P.C.] - The court discussed the enforcement of the order of maintenance under Section 128 of Cr.P.C. and the provision for passing an order of imprisonment under Section 125(3) Cr.P.C. The court highlighted the interpretation of these provisions and their application in granting the remedy for maintenance, emphasizing the continuing liability of the husband to pay maintenance for the welfare and benefit of the wife and daughter.
Fact of the Case:
The wife filed a petition seeking maintenance against the husband. The husband failed to pay the ordered maintenance, leading to imprisonment orders for arrears of maintenance.
Finding of the Court:
The court found that the enforcement of the order of maintenance under Section 128 of Cr.P.C. and the provision for passing an order of imprisonment under Section 125(3) Cr.P.C. were applicable in the case. The court also held that the claim for maintenance was not barred by limitation.
Issues: Enforcement of order of maintenance, imprisonment for arrears of maintenance, and limitation of claim.
Ratio Decidendi: The court emphasized the continuing liability of the husband to pay maintenance for the welfare and benefit of the wife and daughter, as interpreted in previous Supreme Court decisions.
Final Decision: The revision petitions were found devoid of merits and dismissed by the court.
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The revision petitioner was directed to undergo imprisonment for one month for the arrears of each one month or until payment of arrears of maintenance, by the order dated 14.02.2012 in CMP No.40 of 2010 in M.C.No.50 of 2008 on the file of Chief Judicial Magistrate, Ramanathapuram. Challenging the same, the revision petition is filed in Crl.RC.(MD)No.123 of 2012.
2. The revision petitioner was directed to undergo imprisonment for one month for the arrears of each one month or until payment of arrears of maintenance, by the order dated 14.02.2011 in CMP No.94 of 2012 in M.C.No.50 of 2008 on the file of Chief Judicial Magistrate, Ramanathapuram. Challenging the same, the revision petition is filed in Crl.RC.(MD)No.124 of 2012.
3. These revision petitions, challenging the enforcement of the order of maintenance, is pending from the year 2012, for want of service of notice on the part of the respondent.
3.1. The respondent is not served for the past 3 years. The grounds of revision reveal that the issues raised are purely pertaining to questions of law and therefore, the non-appearance of the respondent will not cause any prejudice to the respondent. Therefore, orders are passed in these revision petitions, only by hearing the learned counsel for the petitioner.
4. The respondent herein, viz. the wife, filed the petition in M.C.No. 50 of 2008 seeking maintenance against the revision petitioner. The revision petitioner was directed to pay a sum of Rs.2,000/- per month as maintenance from the date of petition.
5. As the amount of maintenance ordered was not paid, the wife, as petitioner, filed application in CMP 40 of 2010 claiming arrears of maintenance payable from 10.12.2008 to 10.11.2009, totaling Rs.22,000/-
6. Even though the respondent appeared before the learned Magistrate, he did not pay the amount. Therefore, after granting sufficient time, the learned Magistrate passed the impugned order.
7. In respect of non-payment of arrears of maintenance for the period from 11.11.2009 to 11.01.2012, totaling Rs.52,000/- (Rs.2,000/- x 26 months), the next application was filed in CMP No.94 of 2012 under Section 128 Cr.P.C. In this application also, as the respondent was not ready to pay the arrears of maintenance, imprisonment has been ordered. Challenging the same, revision petition in Crl.RC.(MD)No.124 of 2012 has been filed.
8. The main grounds of revision are that (a)the Court has no power to order detention for more than a month for realising the arrears of maintenance and (b)The jurisdiction to pass an order of arrest is under Section 125(3) and not under Section 128 of Cr.P.C.
9. Whether these grounds are sustainable is the simple issue to be decided in these revision petitions.
10. Two types of enforcement (of the order of maintenance) can be resorted to, while enforcing the order of maintenance. The party in possession of the order for maintenance can ask for issuance of a warrant for levying the amount due in the manner provided for levy of fine, ie., as per the procedure contemplated under Section 421 Cr.P.C.. In other words, warrant may be sought for, for the attachment and sale of movable property. Equally, warrant may be directed to be issued to the Collector, authorising him to realise the amount according to the civil process for the attachment and sale of movable or immovable properties. The second remedy is to sentence the husband (or father) for the default in payment of whole or in part of each month allowance, to imprisonment for a term, which may extend to 1 month or until payment is made.
11. If there are arrears for more than 1 month, then the imprisonment exceeding for a period of 1 month can be imposed (Manoj Markas Thorat v. State of Maharashtra, 2010(1) Crimes 749(752) Bom.)
12. Section 128 Cr.PC provides for enforcement of order of maintenance, which reads as under:
"A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be shall be given without payment
