Tripura High Court

Smt Uma Majumder (Das) vs Sri Subrata Das on 11 August, 2021

                      HIGH COURT OF TRIPURA
                            AGARTALA

                        Crl. Rev. P. No. 05 of 2020
1.Smt Uma Majumder (Das) W/o. Sri Subrata Das, of Chanban, P.S.
R.K.Pur, Udaipur, District- Gomati Tripura At present Care of Tarini
Kumar Das, R/O Udaipur, Santipalli, P.O. and P.S. R.K.Pur, District-
Gomati, Tripura
2.Smt Souramin Das, D/o. Sri Subrata Das, Chanban, P.S. R. K. Pur,
Udaipur, District- Gomati Tripura At Present- Care of Tarini Kumar Das,
R/o. Udaipur, Santipalli, PO and PS. R.K.Pur, Dist. Gomati Tripura. (The
Petitioner No. 2 is minor daughter and the Petitioner No. 1 being
mother(the natural guardian) representing this case on behalf of the
Petitioner No. 2).
                                                     --------Petitioner(s)
                                 Versus
1.Sri Subrata Das S/o.Sri Swapan Das, Resident of Chanban, P.S.
R.K.Pur, Udaipur, District- Gomati, Tripura At present East Chataria
(Near Burir Math) P.S. R.K.Pur, Udaipur, Gomati Tripura
2.The State of Tripura represented by PP, High Court of Tripura,
Agartala                                        -------Respondent(s)
                               BEFORE

          HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

For Petitioner(s)          :    Ms. R.Majumder, Adv.
For Respondent(s)          :    Mr. S.Debnath,Addl. P.P.
Date of hearing            :    07.07.2021
Date of delivery of        :    11.08.2021
Judgment
Whether fit for reporting:      Yes/No


                               JUDGMENT

[1] By means of filing this criminal revision petition under

Section 397 read with Section 401 and 482 of the Code of Criminal

Procedure,1973(Cr.P.C hereunder) and Section 19(4) of the Family Courts

Act, petitioner has challenged the order dated 18.07.2019 passed by the

Family Court, Udaipur in Criminal Misc. (Exe.) 118 of 2018 whereby and

whereunder the Family Court has rejected the claim of the petitioners for

recovery of arrear maintenance observing that petitioners are not entitled

to the recovery of such arrear maintenance as their claim is time barred

under Section 125(3) Cr.P.C.

[2] A brief resume of the background facts would be necessary

for deciding the case which is as under:

Petitioner Smt. Uma Majumder(Das) is the wife of the

respondent and minor petitioner Ms. Souramin Das is their daughter.

Claiming maintenance allowance for herself and their daughter, petitioner

wife Smt. Uma Majumder(Das) approached the Family Court at Udaipur

by filing a petition under Section 125, Cr.P.C. which was decided by the

Family Court by a brief order dated 25.04.2013 [Annexure-1] passed in

Criminal Misc. No.FC/UDP/67/2012 granting maintenance allowance of

a sum of Rs.1,000/- to the wife and Rs.2,000/- to the child w.e.f the date

of filing of the said petition and it was ordered by the Court that the arrear

maintenance would be paid by the husband in 10 equal installments.

Husband having defaulted in complying with the said order petitioner

filed a petition under Section 125(3) Cr.P.C for recovery of arrear which

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was registered as FC/UDP/3/17 (Ex). During the pendency of such

petition petitioner further approached the Family Court by filing a petition

on 05.05.2016 seeking enhancement of the allowance. Petitioner claimed

enhancement of her monthly maintenance allowance from Rs.1000/- to

Rs.3,000/- and for her daughter she claimed enhancement from Rs.2,000/-

to Rs.8000/-. By a detailed judgment dated 06.03.2017 in Crl.Misc. FC/

UDP/56/2016, Family Court enhanced her maintenance allowance from

Rs.1,000/- to Rs.1500/- and that of her daughter from Rs.2,000/- to

Rs.3000/- and it was ordered that the respondent husband would pay a

total sum of Rs.4500/- to the wife for maintenance of herself and her

daughter.

[3] Husband having defaulted in paying the maintenance

allowance at the enhanced rate in terms of the said order dated

06.03.2017, petitioner filed successive petitions in the Family Court

seeking enforcement of the order in terms of Section 125(3) Cr.P.C. In

Crl.Misc (Execution) 40 of 2018 which was filed by her on 12.04.2018

she claimed recovery of arrear falling due from 06.07.2017 to

06.04.2018(Annexure-3). In Crl. Misc.(Execution)65 of 2018 she claimed

recovery of arrear falling due from 06.05.2017 to 06.05.2018. This was

followed by another petition which was filed by the petitioner on

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15.11.2018 for recovery of arrear for the period from 06.05.2018 to

06.11.2018 which was registered as Crl. Misc.(Ex)118 of 2018 in which

the impugned order dated 18.07.2019 was passed by the Family Court. It

appears from the impugned order (Annexure-4) that the Judge, Family

Court had taken up all the petitions together and passed a common order

dated 18.07.2019 disposing her petitions observing as under:

".........All the said cases are fixed today and all the records are consulted together. It appears that for the same period she claimed maintenance separately in three different cases which is not at all fair. The petitioner has not approached the court with clean hands. After consulting all the said three records together on the surface it appears that she tried to mislead the court by filing three different cases for common period.

Anyway, here the first Proviso to section 125(3) of Cr.P.C. will come into play. It is obvious that the application for execution of maintenance order was not filed within the period of limitation as prescribed under the first proviso to section 125(3) Cr.P.C. Hence, in view of the said Proviso, I am of the opinion that at this stage the petitioners cannot get any relief in the instant case. Hence, the petition praying for execution of the maintenance order is rejected."

[4] From a bare perusal of the impugned order of the Family

Court, it would be apparent that petitions for recovery of arrear

maintenance were rejected solely on the ground that recovery of arrears

claimed by the petitioner was time barred in view of the operation of

Crl.Rev.P.5/2020

Section 125(3) Cr.P.C as she approached the court for recovery beyond

one year from the date on which the arrear fell due.

[5] Petitioner wife has challenged the said order of the Family

Court mainly on the ground that petitioner came to the court within one

year from the date on which her maintenance fell due. Therefore, the

findings of the court that her claim for recovery was time barred under

Section 125(3) Cr.P.C was not correct.

[6] In course of her arguments, Ms.R.Majumder, learned counsel

appearing for the petitioner submits that, petitioner is passing her days in

extreme hardship along with her minor daughter for lack of support from

her defaulting husband. She is surviving by borrowing money from her

neighbours. Unless her arrear maintenance allowance is recovered from

her husband, she would not be able to survive along with her child.

Counsel appearing for the petitioner, therefore, urges the court to allow

her petition.

[7] The case has been heard ex-parte since the husband did not

turn up despite receiving notice. Mr. S.Debnath, learned Addl. PP

representing the State respondent has however, supported the case of the

petitioner.

Crl.Rev.P.5/2020

[8] It would emerge from the brief order dated 18.07.2019 of the

Family Court that the court declined to grant relief to the petitioner mainly

on the ground that her claim was time barred in terms of the first proviso

to sub-section (3) of Section 125 Cr.P.C since petitioner did not make her

application within one year from the date on which her maintenance

allowance fell due.

[9] But, the impugned order dated 18.07.2019 of the Family

Court itself would demonstrate that the petitioner did not sit idle after

Family Court's judgment dated 06.03.2017 in case No.Crl.Misc./FC

/UDP/56/2016 raising her maintenance allowance came out. She claimed

recovery of arrear of the sum of Rs.54,000/- for the period from

06.07.2017 to 06.04.2018 by filing a petition under Section 125(3) Cr.P.C

against her defaulting husband in the Family Court on 12.04.2018 which

was registered as Misc.FC/UDP/40/2018(Execution) in the Family Court.

Since her arrear fell due on 06.07.2017, petition filed on 12.04.2018 was

obviously within the time contemplated under Section 125(3) Cr.P.C.

[10] It would further appear from the record that her petition for

recovery of arrear in Misc.FC/UDP/40 of 2018(Execution) was alive

when the Family Court passed the impugned order on 18.07.2019 in

Crl.Misc(Exe)118 of 2018 dismissing her subsequent petition for recovery

Crl.Rev.P.5/2020

of arrear on the ground that her claim was time barred. Her earlier petition

for recovery of arrear from 06.07.2017 to 06.04.2018 in case no. Crl.Misc

FC/UDP/40 of 2018 was disposed of subsequently by an order passed on

26.08.2019 by committing the respondent to prison to suffer

imprisonment for 30 days. Said order dated 26.08.2019 in Misc.

Execution 40 of 2018 indicates that the court was aware about the

pendency of the said petition under Section 125(3) Cr.P.C when the

impugned order was passed.


              [11]         In similar circumstances the Hon'ble Supreme Court in

              SHANTHA         ALIAS       USHADEVI         AND      ANOTHER          Versus

B.G.SHIVANANJAPPA reported in (2005)4 SCC 468 succinctly held

that when the main petition claiming arrear was pending and kept alive,

the filing of the subsequent petition was only to specify the exact amount

accrued due upto date. Such subsequent application is only supplementary

or incidental to the petition already filed within the period of limitation.

[12] In the given context, undisputedly, petitioner filed Crl. Misc

FC/UDP/40 of 2018 (Execution) under section 125(3) Cr.P.C. on

12.04.2018 claiming recovery of arrears from 06.07.2017 to 06.04.2018

which fell due pursuant to the judgment passed on 06.03.2017. Therefore,

such petition was well within time. In view of the decision of the Hon'ble

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Apex Court in SHANTHA ALIAS USHADEVI AND ANOTHER

(supra), during the pendency of the said petition in Crl.Misc. 40 of 2018,

no successive petition was at all necessary since it was the continued

liability of the respondent husband to pay the maintenance allowance to

his wife and child. In this regard, the Apex Court in the said Judgment in

SHANTHA ALIAS USHADEVI (supra) has held as under:

"8. .............. It must be borne in mind that Section 125 Cr. P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under Section 125(1) is a continuing liability. ................................"

[13] Also in a later decision in POONGODI AND ANOTHER

Versus THAGAVEL reported in (2013) 10 SCC 618 the Hon'ble apex

court held that maintenance is a continued liability which can be satisfied

only by making actual payment of the arrears. Imprisonment of the

defaulting husband does not wipe out his liability to pay such maintenance

allowance. Observation of the Apex Court is as under:

"5. The decision of this Court in Kuldip Kaur v.

Surinder Singh (1989)1 SCC 405 may be usefully recalled wherein this Court has held the provision of sentencing under Section 125 (3) to be a "mode of enforcement" as distinguished from the "mode of satisfaction" of the liability which can only be by means of actual payment. Paragraph 6 of the report to the above effect, namely, that the mode of enforcement i.e. sentencing to custody does not extinguish the liability may be extracted below: (SCC p.409, para 6)

Crl.Rev.P.5/2020

"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 realised 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 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 not a mode of discharging liability. The section does not say so. 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 discharged by sending the person liable to pay the monthly allowance, to jail. At the cost of repetition it may be stated that it is

Crl.Rev.P.5/2020

only a mode or 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 ...."(emphasis in original)

6. In another decision of this Court in Shantha alias Ushadevi and Another v. B.G. Shivananjappa3 it has been held that the liability to pay maintenance under Section 125 CrPC is in the nature of a continuing liability. The nature of the right to receive maintenance and the concomitant liability to pay was also noticed in a decision of this Court in Shahada Khatoon & Ors. v. Amjad Ali 4. Though in a slightly different context, the remedy to approach the court by means of successive applications under Section 125(3) CrPC highlighting the subsequent defaults in payment of maintenance was acknowledged by this Court in Shahada Khatoon 4."

[14] In view of the said decision of the Apex Court in the case of

POONGODI AND ANOTHER(supra), order dated 26.08.2019 of the

Family Court in Crl.Misc.40 of 2018(Execution) disposing the petition for

recovery of arrear after sentencing the respondent to 30 days'

imprisonment was not correct because the Hon'ble Apex Court has

succinctly held in the said case that imprisonment of the defaulter does

not wipe out his liability to pay maintenance. However, said order dated

26.08.2019 disposing Crl.Misc. 40 of 2018 (Execution) is not in challenge

before this court.

[15] In Rajnesh vs. Neha and Another, reported in (2021) 2 SCC

324, the Hon'ble Supreme Court reiterated the need for expeditious

disposal of execution petition in maintenance cases in order to achieve the

object of the law and held as under:

Crl.Rev.P.5/2020

114. Enforcement of orders of maintenance Enforcement of the order of maintenance is the most challenging issue, which is encountered by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislation. Execution petitions usually remain pending for months, if not years, which completely nullifies the object of the law. ......."

[16] As discussed, petitioner by filing a petition under Section

125(3) Cr.P.C in the Family Court on 15.11.2018 claimed recovery of her

arrear maintenance of a sum of Rs.31,500 for seven months at the rate of

Rs.4500/- per month for the period from 06.05.2018 to 06.11.2018

pursuant to a judgment passed in her favour by the said Family Court on

06.03.2017 in Crl. Misc/FC/UDP/56 of 2016 raising her maintenance

allowance from Rs.1000/- to Rs.1500/- and that of her kid from Rs.2000/-

to Rs.3000/-. The family court dismissed her petition by the impugned

order passed on 18.07.2019 on the ground that it was time barred under

the First proviso to Section 125(3) Cr.P.C whereas her earlier petition in

Crl.Misc.40 of 2018(Execution) for recovery of arrear arising out of the

same order dated 06.03.2017 was kept alive which was disposed of by the

same court on a subsequent date on 26.08.2019 by sentencing the

respondent to imprisonment for 30 days towards recovery of maintenance

pursuant to same judgment passed on 06.03.2017 in Crl.Misc FC/UDP/56

of 2016. Said order dated 26.08.2019 in Crl.Misc 40 of 2018 (Execution)

reads as under:

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"The petitioner is present.

The O.P.Sri Subrata Das is present. On being asked to the OP expressed his inability to pay arrear maintenance allowance amounting to Rs.45,000/-(@ Rs.4500/- per month) passed in connection with case no.Crl.Misc. FC/UDP/56/2016 as claimed by the Petitioner-Smt. Uma Majumder Hence, he is taken into custody and committed to prison to suffer imprisonment for a term for 30(thirty) days' or until payment is made.

Issue warrant of imprisonment accordingly.

Send a copy of this order along with warrant of imprisonment to the Superintendent, District Jail, Udaipur, Gomati District, Tripura.

The case stands disposed of without any contest.

Make necessary entries in the Trial Register."

[17] Situated thus, the family court committed an error by holding

that her petition under Section 125(3) Cr.P.C filed on 15.11.2018 for

recovery of arrear maintenance falling due from 06.05.2018 arising out of

order dated 06.03.2017 was time barred by operation of the first proviso

to Section 125(3) Cr.P.C because the earlier petition in Crl. Misc 40 of

2018 arising out of the same order was filed in time and it was pending

before the court. In view of the law laid down by the Apex Court in the

case of SHANTHA ALIAS USHADEVI(supra) relied on by the counsel