Abdul Abid S/O Abdul Sattar vs Sultana Parveen D/O Husainkhan ...
2005 Latest Caselaw 617 Bom

JUDGMENT

A.H. Joshi, J.

1. Petitioner herein had suffered an order for payment of a sum of Rs. 6000/- towards maintenance for iddat period, Rs. 7,051/towards Mehr and Rs. 50,000/- towards the reasonable and fair provisions in view of divorce under Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986, vide judgment of the J.M.F.C. Amravati, dated 3-9-2001, and it seems that it became final.

2. The petitioner has failed to make the payment and that has resulted in the wife filing an application claiming recovery of amount totalling Rs. 63,051/-. She made following prayer:

"PRAYER :-- It is, therefore, most humbly prayed that, the Hon'ble Court be pleased to direct the non-applicant to pay Rs. 63,051/- in lump sum failing which issue distress warrant and in case property is not available the non-applicant may be sent to Jail realisation of amount."

3. The petitioner failed to comply with the order. Upon notice, he was then produced before the Court by issue of non-bailable warrant. The non-applicant had failed to pay the sum of Rs. 32,000/-. Thereafter he gave an undertaking on 29-11-2001 and undertook to pay a sum of Rs. 10,000/-, to which he failed. The failure is, according to the wife, in spite that he has means to make the payment. The learned J.M.F.C. therefore, by order dated 14-1-2002 sentenced the Cri. Application No. 2077 of 2003 decided on 6-5-2005. (Nagpur) petitioner to suffer S.I. for 30 days. The reasons for leniency prayed for by the petitioner in application (Exh.20) did not convince the Magistrate.

4. According to the petitioner, he has undergone the imprisonment in compliance with the order passed by the Magistrate on 14-1-2002. Thereafter again the wife applied for similar action, and a warrant of arrest was issued, and the petitioner was brought before the Magistrate. Towards the same failure, the Judicial Magistrate again passed order on 19-7-2002 and sentenced imprisonment for 30 days for second time too. This time the petitioner has again undergone S.I. for 30 days.

5. The wife has again moved application i.e. on 3rd occasion on 17-12-2002, to arrest the petitioner according to law for recovery. This application remained pending. Similar rather fourth application was again filed on 20-2-2003.

These applications are Exh. 34 and Exh. 41. The Judicial Magistrate, First Class passed order on 24-3-2003 and allowed both the applications (Exhs. 34 and 41) and directed issuance of warrant against the petitioner due to non-payment of amount of Rs. 63,000/-.

6. The petitioner earned a revision petition challenging the order dated 24-3-2003 passed below Exhs. 34 and 41. The learned Sessions Judge dismissed the revision application by order dated 16-6-2003, against which present petition has been filed.

7. The grounds of challenge raised in the petition are as follows:--

(i) That there cannot be multiple and repeated punishments for the same default, nor can the petitioner be arrested again and again in anticipation of sentence for same default;

(ii) the order is violative of Article 20 of the Constitution;

(iii) that amount could be recovered at the most as fine by adopting the procedure prescribed for recovery of fine as provided in Section 421 of Criminal Procedure Code or Section 357 thereof, for which repeated detention is impermissible.

8. The grounds raised by the petitioner need to be analysed and are analysed as hereinafter.

9. It is seen that in Section 3, Sub-section (4) of Muslim Women (Protection of Rights in Divorce) Act, 1986, the word used is "sentence", which presupposes commission of offence in the event of each failure. In the case on hand it is a composite order for maintenance of iddat period, together with payment of reasonable amount for provision for future and the petitioner has failed to comply with the same. The amount is recoverable, notwithstanding any length of duration of non-payment.

10. Since the consequences are styled as "sentence", failure to comply with is punishable only once. Moreover, if it is a case of non-payment of liability which is not recurring. Had it been a case of monthly maintenance, every 12 months non-payment may create fresh cause of action, however, this being an order of single payment, the right to sentence would extinguish by imprisonment on one occasion. In the result any subsequent sentence would be hit by Article 20 of the Constitution.

11. In the result, petition succeeds. Rule is made absolute. Order passed by Judicial Magistrate, First Class, Amravati, below Exh. 34 and Exh. 41, dated 24-3-2003 is quashed and set aside, and applications Exhs. 34 and 41 are dismissed. This however, does not foreclose or destroy the respondent's right to recover the amount by any other mode of recovery available in law.