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2017 Supreme(Mad) 3043

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SURESH KUMAR, J.
V.B. Kamalanathan - Petitioner
Versus
K. Jayasree & Others - Respondents
Crl.R.C. No. 599 of 2017 & Crl.M.P. No. 5321 of 2017
Decided On : 07-11-2017

Advocates Appeared:
For the Petitioner:A.S. Narasimhan, Advocate.
For the Respondents:Packiaraj, P.J. Anitha, Advocates.

Headnote:

Code of Criminal Procedure, 1973 - Section 125 - During the pendency of the said maintenance case, since the husband did not maintain the wife and children - Petitioner herein is the husband and the first respondent is his wife and the second and third respondents are his minor children - Wife filed a maintenance case on the file of the aforesaid Court - Held, Here in this case, as has been narrated above, the petitioner/husband without any sufficient cause failed to comply with the order of interim maintenance and in order to ensure compliance of the said order, the respondent/wife, rightly invoked proviso to sub section (3) of Section 125 by filing the present petition which was decided by the learned Judge after affording reasonable opportunity to the parties - Since the order of interim maintenance was confirmed by the rejection of the revision filed by the petitioner /husband, the order becomes final and therefore, the same has to be complied with by the petitioner/husband. Since the arrears of interim maintenance is mounting every month, the point of period of limitation of 12 months as raised by the petitioner/husband also, cannot be made against the respondent/wife - Petition closed.

Judgement Key Points

Key Points: - Interim maintenance ordered for wife and children at Rs. 10,000 each per month; confirmed on revision and treated as final for compliance purposes (!) (!) (!) . - Proceedings under Section 125(3) allow issuing warrants for arrest to recover arrears, with a proviso limiting imprisonment and specifying a one-year period for issuing warrants, while treating ongoing arrears as continuing amounts (!) (!) (!) (!) (!) . - The petitioner/husband failed to pay despite interim maintenance orders and conditional stay orders; court upheld arrest as a valid enforcement measure after reasonable opportunity (!) (!) (!) . - Application of Section 125(3) to arrears that accrue monthly, even if many months fall within a rolling one-year look-back, treating arrears as recurring and recoverable within the proviso framework (!) (!) . - The revisional court dismissed the challenge, finding no illegality in the enforcement order given the non-compliance and finality of interim maintenance, and refused interference under revisional powers (!) (!) (!) . - Second proviso and procedural safeguards emphasize speedy disposal (within sixty days) of interim applications and opportunities for the defaulter to settle before punitive measures are imposed (!) (!) .

How to enforce interim maintenance under Section 125(3) during pendency of proceedings?

What is the period of limitation applicable to arrears claimed under Section 125(3) and how does it apply to ongoing arrears?

What are the permissible enforcement measures (warrant/arrest) and procedural requirements for recovery of arrears under Section 125(3)?


JUDGMENT :

1. This revision case has been filed challenging the order passed by the II Additional Family Court at Chennai at 24.3.2017 made in M.P.No.198 of 2016 in M.C.No.145 of 2012.

2. The necessary facts which are required to be noticed for the disposal of this revision case are as follows:

(i) The petitioner herein is the husband and the first respondent is his wife and the second and third respondents are his minor children. The wife filed a maintenance case in M.C.No.145 of 2012 on the file of the aforesaid Court under Section 125 of Code of Criminal Procedure (hereinafter referred to as, 'the Code'). During the pendency of the said maintenance case, since the husband did not maintain the wife and children, and due to which, since the wife and children were suffering to maintain themselves, the wife filed an interim application in M.P.No.495 of 2012 in the said M.C.No.145 of 2012 seeking for interim maintenance from the husband.

(ii) M.P.No.495 of 2012 seeking for interim maintenance was heard and decided by the learned Judge by order dated 02.03.2015. In the said order, the learned Judge directed the husband to pay a sum of Rs.10,000/- each for the wife and two children, altogether a total sum of Rs.30,000/- per month as interim maintenance to the wife and children, from the date of the petition i.e., from 01.08.2012.

(iii) In-spite of the said order of interim maintenance having been passed by the learned Judge as set out above, since the husband did not come forward to make the payment, as alleged by the wife, the wife filed yet another petition in M.P.No.198 of 2016 in M.P.No.495 of 2012 in M.C.No.145 of 2012 under Section 125(3) of the Code to seek for a direction directing the husband to make the payment of arrears for the period between 01.08.2012 and 30.4.2015, i.e., for 33 months at the rate of Rs.30,000/- per month and a total sum of Rs.9.30,000/-. This petition under Section 125(3) of the Code was filed by the wife on 21.5.2015.

(iv) It seems that in this petition i.e., M.P.No.198 of 2016, since the husband did not appear before the Court on the hearing date, the learned Judge by order dated 17.3.2016, ordered arrest of the husband, by 31.5.2016.

(v) Challenging the said order of arrest passed by the learned Judge by order dated 17.3.2016, the husband preferred a revision case before this Court in Crl.R.C.No.624 of 2016 on the ground that the husband was not given a chance of filing a counter before the Court below, and since the learned Judge passed a cryptic order of arrest without disclosing any reason for the same, the said revision i.e., Crl.R.C.No.624 of 2016 was heard and finally decided by this Court by order dated 29.4.2016 whereby, the learned Judge of this Court set aside the said order of arrest and remanded the matter to the trial Court to rehear the issue by affording an opportunity of filing a counter and to adduce evidence if any, by both sides and thereafter, to pass a reasoned speaking order, afresh in a qualitative and quantitative terms in a dispassionate manner and that too with open mind by adhering to the principles of natural justice within a period of four weeks from the date of receipt of a copy of that order.

(vi) Only pursuant to the orders of this Court, the husband had filed counter in M.P.No.198 of 2016. In the said counter, the husband raised a primary objection that M.P.No.198 of 2016 was not maintainable, because, as against the order passed in M.P.No.495 of 2012 directing the husband to pay a sum of Rs.30,000/- to the wife and children it was already challenged before this Court in Crl.RC.No.516 of 2015 and the same was pending before this Court and in view of the same, since no finality was reached in the said Crl.RC.No.516 of 2015, the present petition in M.P.No.198 of 2016 filed seeking direction from the trial Court to the husband to make a payment of arrears of interim maintenance which was a subject matter in the said Crl.RC.No.516 of 2015.

(vii) This apart, the husband also cl





















































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