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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1542 OF 2013 (ARISING OUT OF SLP (CRL.) NO. 4654 OF 2005)

Poongodi & Anr. ... Appellant(s) Versus

Thangavel ... Respondent(s)

J U D G M E N T

RANJAN GOGOI, J.

Delay condoned.   Leave granted.

2. The appellants are the wife and son of one Thangavel.  

By an order dated 12.01.1998 passed by the learned trial  

court each of the appellants have been granted maintenance  

@      Rs. 300/- per month w.e.f. 04.02.1993 i.e. date of filing  

of the application under Section 125 of the Code of Criminal  

Procedure  (CrPC).  As  the  respondent-husband  had  not  

complied  with  the  order  of  payment,  in  a  miscellaneous  

petition, i.e., C.M.P. No. 566/1998 filed by the appellant, the  

trial court by its order dated 21.07.1998 had sentenced the  

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respondent  to  imprisonment.   The  default  in  payment  of  

maintenance  was  for  the  period  4.2.1993  to  4.2.1998.  

On  5.2.2002  another  miscellaneous  application  (Crl.M.P.  

No.394/2002)  was  filed  by  the  appellants  claiming  

maintenance for the period 4.2.1993 to 5.2.2002.  The same  

was allowed by the learned Magistrate on 31.12.2002 against  

which the respondent had filed Crl. R.C. No. 620/2003.  The  

High Court by its order dated 21.4.2004 held that as Crl.M.P.  

No. 394/2002 was filed on 5.2.2002, under the first proviso to  

Section 125(3) CrPC, the appellants were entitled to claim  

arrears for the period of one year preceding the date of filing  

of  the  application  i.e.  from  4.2.2001  to  5.2.2002.  

Accordingly, the High Court directed the respondent (revision  

petitioner  before  it)  to  pay  the  arrears  for  the  aforesaid  

period within two months failing which it was directed that an  

arrest warrant would be issued against the respondent and  

the sentence of imprisonment earlier imposed by the learned  

Magistrate would come into effect.  As the aforesaid order of  

the  High  Court  had  curtailed  the  entitlement  of  the  

appellants to maintenance to a period of one year prior to  

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the date of filing of the Crl. M.P. No. 394/2002, the appellants  

have filed this appeal.

3. We have heard learned counsel for the parties.

4. A reading of the order dated 21.4.2004 passed by the  

High  Court  would  go  to  show that  the  proviso  to  Section  

125(3) CrPC has been construed by the High Court to be a  

fetter on the entitlement of the claimants to receive arrears  

of maintenance beyond a period of one year preceding the  

date of filing of the application under Section 125(3) CrPC.  

Having considered the said provision of the Code we do not  

find that the same creates 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)  CrPC,  namely,  by  

construing the same to be a levy of a 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  year  

commencing  from  the  date  on  which  the  entitlement  to  

receive  maintenance  has  accrued.   However,  in  such  a  

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situation  the  ordinary  remedy  to  recover  the  amount  of  

maintenance, namely, a civil action would still be available.   

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

Singh and Anr.1 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:

“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  

1 (1989) 1 SCC 405

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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  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:

……….  ….”

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6. In  another  decision  of  this  Court  in  Shantha  alias  

Ushadevi  and  Another  v.  B.G.  Shivananjappa2 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 & Ors.3.  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 (supra).

7. The  ratio  of  the  decisions  in  the  aforesaid  cases  

squarely apply to the present case.  The application dated  

05.02.2002 filed by the appellants under Section 125(3) was  

in continuation of the earlier applications and for subsequent  

periods of default on the part of the Respondent.  The first  

proviso  to  Section  125(3),  therefore  did  not  extinguish  or  

limit the entitlement of the appellants to the maintenance  

2 (2005) 4 SCC 468 3 (1999) 5 SCC 672

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granted by the learned trial court, as has been held by the  

High Court.

8. In view of the above, we are left in no doubt that the  

order passed by the High Court needs to be interfered with  

by us which we accordingly do.  The order dated 21.04.2004  

of the High Court is set aside and we now issue directions to  

the respondent to pay the entire arrears of maintenance due  

to the appellants commencing from the date of filing of the  

Maintenance Petition (M.C.No.1/1993) i.e. 4.2.1993 within a  

period of six months and current maintenance commencing  

from the month of September, 2013 payable on or before 7th  

of October, 2013 and thereafter continue to pay the monthly  

maintenance on or before the 7th of each successive month.  

If the above order of this Court is not complied with by the  

Respondent,  the  learned Trial  Court  is  directed  to issue a  

warrant for the arrest of the respondent and ensure that the  

same is executed and the respondent taken into custody to  

suffer imprisonment as provided by Section 125(3) CrPC.

The appeal is allowed.

..………………………..………………………J.

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                              [SUDHANSU JYOTI  MUKHOPADHAYA]                     

..………………………..………………………J.                                [RANJAN GOGOI]                     NEW DELHI SEPTEMBER 27, 2013

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