@JUDGMENTTAG-ORDER
S. Tamilvanan, J.@mdashHeard the learned Counsel appearing for the Petitioner as well as learned Counsel appearing for the Respondents.
2. Challenging the order, dated 16.09.2009 made in Crl.M.P. No. 151 of 2007 in M.C. No. 7 of 2001, on the file of the Family Court, Madurai, the Criminal Revision has been preferred.
3. It is not in dispute that the first Respondent herein is the wife and the second Respondent is the minor daughter of the Petitioner herein. The first Respondent, on her own behalf and as guardian and next friend of the minor second Respondent, had filed a petition u/s 125 of Code of Criminal Procedure seeking maintenance. Originally, the Court below passed an order directing the Petitioner herein to pay each of the Respondents herein at Rs. 350/- towards maintenance. The learned Counsel appearing for the Petitioner has not disputed the fact that he was paying the aforesaid maintenance to the Respondents. Subsequently, the Respondents herein filed a petition for enhancement of maintenance. As per the order dated 26.03.2010, made in Crl.M.P. No. 151 of 2007 in M.C. No. 7 of 2001, the learned Family Court''s Judge passed an order directing the revision Petitioner herein to pay enhanced maintenance of Rs. 700/- to the Respondents. The said order was not challenged by the Petitioner herein. It cannot be disputed that the maintenance amount awarded in favour of the Respondents by the Court below is not exorbitant. The learned Counsel appearing for the Petitioner drew the attention of this Court, the docket order dated 16.09.2009 of the Court below. According to the learned Counsel appearing for the Petitioner, the Court below has not complied with the proviso to Section 125(3) of Code of Criminal Procedure which reads as follow:
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, any may sentence such person, for the whole or any part of each month''s [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court, to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife, on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
4. Admittedly, the impugned order is not against the award. The impugned order is only directing the revision Petitioner herein, who was the Respondent therein to pay the arrears of maintenance as ordered earlier within a period of two weeks, unless there is some illegality or irregularity, the same cannot be set aside by this Court. The proviso cited by the learned Counsel appearing for the Petitioner is not applicable to the facts and circumstances of the case, as there is no warrant issued by this Court for non payment of arrears of maintenance. The learned Counsel appearing for the Respondents filed a memo of calculation, however, the Petitioner had not filed any other memo of calculation. Though the Petitioner has stated that the Respondents herein are not entitled to claim arrears of maintenance for the period more than one year, such a defence was not raised in their counter, before the Court below. A copy of which is available in the typed set and further, for claiming arrears of maintenance, there is no such limitation of one year, as contended by the learned Counsel appearing for the Petitioner. It is only for arresting a person, who was not complied with the order passed towards maintenance. The Hon''ble Supreme Court in Suo Motu v. State of Gujarat reported in II(2009) DMC 196 (FB) relying on earlier decision of the Supreme Court has held as follow:
10.2. In the case of
10.3. In the case of
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 ... . 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.
5. The Hon''ble Supreme Court has held that the case of seeking maintenance, the claim has to be construed continuing liability and further it is answered by the Hon''ble Apex Court held as follows:
22. In the result, question is answered in following terms:
Magistrate is exercise of power u/s 125 of the Code of Criminal Procedure is empowered to sentence in defaulting person for a term up to one month for until payment if sooner made, for each month of default subject of course to the limitation provided in Proviso to Sub-section (3) of Section 125. In other words, it is open for the Magistrate to award sentence up to a maximum of one month for each month of default committed by the person ordered to pay maintenance and the maximum limit of sentence of one month referred to in Sub-section (3) of Section 125 will be applicable for each month of default. Magistrate can entertain separate applications from the person entitled to receive such maintenance or even entertain a common application for several months of default and pass appropriate order and, if found necessary, sentence a defaulting person upto a maximum one month for each month of default. In all such cases, however, period of limitation provided in Sub-section (3) of Section 125 shall have to be borne in mind.
6. As per the Full Bench decision of the Hon''ble Apex Court, it is made clear that Section 125(3)(c) is applicable only for issuing warrant, for which, that should be an application made by the claimant and such amount shall be levied within a period of one year from the date on which it become due. However, for claiming arrears of maintenance, there is no such one year limitation as contended by the learned Counsel appearing for the Petitioner. In the light of the decision rendered by the Hon''ble Apex Court, I am of the view that there is no illegality in the order passed by the Court below, which do not warrant any interference of this Court.
7. In the result, the criminal revision is liable to be dismissed. Accordingly, the same is dismissed. miscellaneous petition is closed.
