Karnataka High Court
Smt. Akhtharkhanum W/O Fateh Ahmed vs Fateh Ahmed S/O Halliyalkar @ Kakar on 7 January, 2025
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CRL.RP No.100234 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 07TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.100234 OF 2017
BETWEEN:
SMT. AKHTHARKHANUM
W/O. FATEH AHMED HALLIYALKAR @ KAKAR,
AGE: 42 YEARS, OCC: HOUSE WIFE,
R/O: GANDHI NAGAR, DHARWAD.
...PETITIONER
(BY SRI R.H. ANGADI, ADV. AND
SRI PRAKASH R.BADIGER, ADV. FOR PETITIONER)
AND:
FATEH AHMED S/O. HALLIYALKAR @ KAKAR,
AGE: 52 YEARS, OCC: SERVICE,
F.D.A. IN PRIMARY HEALTH CENTRE,
KHANAPUR, DIST: BELAGAVI,
R/O: TIPPU SULTAN NAGAR,
PEERANWADI, BELAGAVI.
...RESPONDENT
(BY SRI SURESH SHETTEMMANAVAR, ADV. FOR RESPONDENT)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C., SEEKING TO ALLOW THE
PETITION AND TO SET ASIDE THE IMPUGNED ORDER DATED
07.04.2017 PASSED IN CRL. MISC. NO.241 OF 2015 PASSED BY THE
PRINCIPAL JUDGE, FAMILY COURT, DHARWAD AND CONSEQUENTLY
ALLOW THE PETITION AND FILED BY THE PETITIONER AND ETC.,
THIS CRIMINAL REVISION PETITION, HAVING BEEN HEARD
AND RESERVED ON 29.11.2024, COMING ON FOR PRONOUNCEMENT
OF ORDER THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.RP No.100234 of 2017
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
CAV ORDER
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI)
This petition filed under Section 397 r/w 401 Cr.P.C
is by the wife against her husband, challenging the order
passed by the Family Court by which her petition for
recovery of maintenance for a period beyond 12 months
from the date of petition came to be rejected, holding that
it is barred by limitation.
2. The marriage of petitioner and respondent was
solemnized on 10.05.1994. It is alleged that as the
respondent started ill treating the petitioner, she was
forced to leave the matrimonial home. Since he did not
provide any maintenance to her, she approached the II
Addl. Civil Judge and JMFC, Dharwad in
Crl.Misc.No.124/07. It was allowed granting maintenance
at Rs.5000/- per month. In Crl.P.No.10871/2011 filed by
the respondent, this Court reduced the maintenance to
Rs.2500/- per month. Later, petitioner filed
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CRL.RP No.100234 of 2017
Crl.Misc.No.246/2014 before the Family Court wherein the
maintenance was enhanced to Rs.4000/- per month vide
order dated 27.09.2016. Since respondent failed to comply
with the order passed by the Family Court, petitioner filed
Crl.Misc.No.241/2015 under Section 125(3) Cr.P.C for
enforcing the order. However, by the impugned order, the
Family Court has dismissed the same on the ground that it
is barred by limitation.
3. Aggrieved by the same, the petitioner is before
this Court contending that it is not only erroneous, but also
perverse, capricious and contrary to the settled principles
of law and request to set aside. Section 125(3) does not
stipulate any limitation. The same is not properly
understood by the trial Court. Petitioner is entitled to
receive the maintenance. Her legitimate right to receive
the maintenance cannot be denied. Therefore order is
liable to be set aside and hence the petition.
4. In support of his arguments, learned counsel for
petitioner has relied upon the following decision:
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CRL.RP No.100234 of 2017
(i) Poongodi and others Vs Thangavel
1
(Poongodi)
5. After due service of notice, respondent has
appeared through counsel.
6. Heard arguments of both side and perused the
record.
7. The short question that arises for consideration
is whether any limitation is prescribed for enforcing the
order granting maintenance under Section 125 CR.P.C?
8. Section 125 of Cr.P.C makes provision for order
for maintenance of wives, children and parents. It provides
that if any person having sufficient means neglects or
refuses to maintain, his wife who is unable to maintain
herself or his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself or his legitimate
or illegitimate child (not being a married daughter), who
has attained majority, where such child is, by reason of
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(2013) 10 SCC 618
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CRL.RP No.100234 of 2017
any physical or mental abnormality or injury, unable to
maintain itself or his father or mother, unable to maintain
himself or herself.
9. On proof of such neglect or refusal, the
Magistrate may order such person to make a monthly
allowance for maintenance.
10. Proviso to sub-section (1) enable the Magistrate
to grant maintenance to even a married minor daughter
where he is satisfied that the husband of such minor
married daughter is not possessing sufficient means to
maintain her. The second proviso empowers the Magistrate
to grant interim maintenance and also the expenses of the
proceedings. The third proviso requires that the application
for interim maintenance is to be disposed of within a
period of 60 days as far as possible.
11. Sub-section (2) of Section 125 provides that
such order of maintenance may be passed from the date of
application or from the date of order as the case maybe.
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CRL.RP No.100234 of 2017
12. Sub-section (3) of Section 125 deals with
execution of the order. From the reading of this provision,
it is clear that when any person so ordered to pay
maintenance fails to pay the same without any sufficient
cause, the Magistrate may for every such breach issue
warrant for levying the amount due in the manner
provided for levying fines, and may also sentence such
person to imprisonment for a term which may extend to
one month or until payment, if sooner made, for the whole
or any part of each month's allowance. Thus, two modes of
recovery is contemplated:
(i) Recovering the same as a levying fines, and
(ii) Sending the defaulter to imprisonment for a
month for every default or part thereof.
13. In addition to these two modes, the petitioner
may also recover the arrears by other modes like
attachment of salary, attachment of movable properties,
etc.
14. No provision under Section 125 states that the
petitioners are required to recover the arrears of
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CRL.RP No.100234 of 2017
maintenance within one year and enforcement of any
maintenance beyond a period of one year would be barred.
15. However, first proviso to sub-section (3) of
Section 125 prohibits the Magistrate from issuing a
warranty for recovery of any amount to due under the said
Section unless the application is made to the Court to levy
such amount within a period of one year from the date on
which it became due. In other words, when the petitioner
want the Magistrate to issue a warrant to levy such
amount and in default send the respondent to prison
he/she shall file the petition within a period of one year
from the date on which it become due. The limitation of
one year is for the purpose of recovering the maintenance
by issue of fine levying warrant with default sentence of
imprisonment. However, the petitioner is at liberty to
recover the areas by other modes.
16. This situation is clarified by the Hon'ble
Supreme Court in Poongodi referred to supra. In that
case, the High Court held that the petitioners were entitled
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CRL.RP No.100234 of 2017
to claim arrears for a period of one year preceding the
date of filing application and had confined entitlement of
the petitioners to maintenance to a period of one year
prior to the date of filing the application. The Hon'ble
Supreme Court held that it has not found that Section
125(3) of Cr.P.C creates bar or in any way effect
entitlement of claimant to any of maintenance. The first
proviso of Section 125(3) did not extinguish or limit
entitlement of petitioners to receive maintenance granted
by the trial Court.
17. The Hon'ble Supreme Court further held that
having considered the provision of Section 125(3) of
Cr.P.C, it does not create a bar or in any way effects the
entitlement of a claimant to arrears of maintenance. What
the proviso contemplates is that the procedure for
recovery of maintenance under Section 125(3) of Cr.P.C,
namely, by considering the same to be a levy of 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
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CRL.RP No.100234 of 2017
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.
18. In the above decision, the Hon'ble Supreme
Court has referred to the its decision in Kuldeep Kaur Vs
Surinder Singh and Anr reported in (1989) 1 SCC
405 and extracted para 6 of the judgment as under:
"6. A distinction has to be drawn between a mode of
enforcing recovery on the one hand and effecting
actual 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 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
discharge. Be it also realized 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 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 is paid in order to enable
the wife and child to live by providing with the
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essential economic wherewithal. Neither the neglected
wife nor the neglected child can live without funds for
purchasing food and the essential articles to enable
them to live. Instead of providing them with the
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 Parliament in its wisdom
has 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 can be discharged
only upon the monthly allowance being recovered. The
liability cannot be taken to have been discharge 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 of method of recovery
and not a 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....."
19. Thus, from the plain reading of Section 125(3)
of Cr.P.C and in the light of the above referred decisions of
the Hon'ble Supreme Court, it is crystal clear that no
period of limitation is specified for enforcing an order of
maintenance. When the petition for executing the order is
filed beyond a period of one year, the advantage of
recovering the same by issue of warrant for levying the
amount due in the manner provided for levying fines and
also sentencing the respondent to imprisonment for
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violation would not be available. However, the petitioner
would be entitled for recovering the same by other modes.
Therefore, the Family Court has erred in dismissing the
petition filed for recovery of maintenance arrears. In the
result, the petition deserves to be allowed and accordingly
the following:
ORDER
(i) Petition filed under Section 397 r/w 401
Cr.P.C is allowed.
(ii) The impugned order dated 07.04.2017
passed by the Prl.Judge, Family Court,
Dharwad in Crl.Misc.No.241/2015 is set
aside.
(iii) The petition is restored to the file with a
direction to the Family Court to execute the
same in accordance with law and in the
light of the decision of the Hon'ble
Supreme Court in the above referred
judgments.
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(iv) Send a copy of the order to the Family
Court forthwith.
SD/-
(J.M.KHAZI)
JUDGE
RR
CT: UMD
