1991 ALLMR ONLINE 657
BOMBAY HIGH COURT

M.L. PENDSE AND A.D. MANE, JJ.

Dnyaneshwar Baburao Gorel Vs. Sau. Kamal Dnyaneshwar Gorel and others

Criminal Revision Application No. 137 of 1989

25th September, 1991


Respondent Counsel: Avinash shivade Nos. 1 and 2

Criminal P.C. (1973),S. 8

Cases Cited:
(1983) 2 Born CR483 : 1983 Cri LR (Mah) 300 (Refd.) [Para 11]
Cri. W.P. No. 103 of 1982, D/- 29-7-1982 (Bom) [Para 11]
(1982) 1 Born Cr 504 : 1982 Cri LC 548 (Explained) [Para 7]
AIR 1980 SC 470 : (1980) 2 SCC 360 (Rel. on) [Para 8]


JUDGMENT

A. D. MANE, J.:-This criminal revision application has been placed before us on a reference made in that behalf by the learned single Judge of this Court for decision on the question as to the procedure and interpre- tation of sub-section (3) of Section 125 of the Code of Criminal Procedure.

2. The material facts which gave rise to the filing of the revision application by the petitioner husband are as follows:

The wife filed an application under Section 125 of the Code of Criminal Procedure (for short 'the Code') claiming maintenance

allowance for self and for and on behalf of her minor daughter against the petitioner. The learned Judicial Magistrate, First Class, Kirkee, Pune, by order dated July 6, 1987, granted maintenance only to the minor daughter at the rate of Rs. 1001- per month and rejected the wife's application for maintenance allownce on the ground that she was not the legally wedded wife of the petitioner for she married him when his first marriage was subsisting. The wife, however, filed revision application before the Sessions Court, Pune, and prayed for setting aside the order of the trial Magistrate rejecting her claim and also for enhancement of quantum of the monthly maintenance allowance at the rate of Rs. 250/- per month for self and Rs,200/- per month for her daughter. By order dated October 21, 1988 the Sessions Court allowed the revision application of the wife and granted maintenance to the wife and her daughter at the enhanced rate of Rs. 250/ - per month and Rs. 200/- per month respectively.

3. Thereafter, on failure of the petitioner to comply with the order granting maintenance allowance to the wife and the daughter, an application was filed on March 12, 1989 by the wife for recovery of the amount of maintenance allowance. That application was opposed by the petitioner husband. It appears that the said application was, however, transferred to the Family Court on its constituting and establishing at Pune.

4. The learned Judge of the Family Court, by his order dated March 12, 1989, first issued a distress warrant against the petitioner husband for recovery of Rs. 26,000/- being the amount of arrears of monthly maintenance allowance. The distress warrant was made returnable on April 2, 1989. The warrant was not served by the police nor the petitioner remained present before the learned Judge of the Family Court on the returnable date. The learned Judge of the Family Court, by his order dated April 2, 1989, issue warrant of arrest against the petitioner with the condition that the petitioner be released if he pays Rs. 26,000/-.

5. Being aggrieved by the orders dated March 12, 1989 and April 2, 1989, the petitioner husband filed this revision application and it came up for hearing before the learned single Judge of this Court on August 23, 1990.

6. In order to appreciate the question which requires our consideration, it become! necessary to mention the circumstances which led to place this matter before the Division Bench. During the hearing of the revision application before the learned single Judge one of the contentions raised by the learned counsel for the petitioner was that in view of the decision in the case of Abdul Ajij Puddai Ansari v. Jubedabai, 1982 (1) Bom CR 504the petitioner's husband is entitled to reagitate before the Executing Court in execution proceedings that the wife is not the legally wedded wife and, therefore, no entitled to maintenance. It was also sought to be contended that the husband's also entitled to show that he is not liable to pay maintenance as it would cover the expression "sufficient cause" as appearing in sub-section(3) of Section 125 of the Code o Criminal Procedure. Therefore, if the husband is able to show even in the execution proceeding that the wife seeking execution ii not his legally wedded wife, he can be considered to have shown sufficient cause so as to decline to proceed further in the execution proceedings. On the other hand the learned counsel for the wife disputed the above position in law but at the same time hi also seems to have missed the true import o the decision. He contended that the decision referred to above is in effect indicates that the husband could be detained in jail under sub, section (3) of Section 125 of the Code pro vided the wife establishes at the time o passing of the order that. the husband ha! sufficient means to pay but still declines to comply with the order. Therefore it was sought to be contended on behalf of the wife that the said decision requires reconsideration.

7. In view of the controversy in the arguments of the learned counsel for the parties, the learned single Judge also seems to have considered the ratio of the above

decision to be so as argued by the learned counsel for the parties and he is of the view that on plain reading of sub-section (3) of Section 125 of the Code, it is clear that it is for the husband to show sufficient cause for not complying with the order passed against him and such cause must have arisen subsequent to the passing of the order tinder sub-section (3) of Section 25 of the Code. Therefore, according to him, if the husband is to be allowed to again agitate the grounds including that he had no sufficient means, it would be actually amounting to reopening the case which is already decided and that too before the same Court which actually passed the order and that would amount to review of the earlier order passed by the same Court. "Sufficient Cause" referred to in sub- section (3) of Section 125 of the Code necessarily is to be shown for not complying with the order and one cannot be allowed to raise the same ground which is already decided after full fledged inquiry. In the opinion of the learned single Judge the husband against whom an order of minatenance is passed, can only show that subsequent to the passing of the order due to some events he was not able to comply with the order passed under sub- section (1) of Section 125. It may be stated that the learned single Judge was conscious that the decision in Ansari's case (cited supra) in terms does not say that the husband can in execution proceedings raise any other grounds which were raised or could be raised in the petition under sub-section (1) of Section 125 of the Code. But, in his opinion,if the proposition laid down in the said decision is stretched to a logical conclusion, it could .possibly mean that the contention that the husband even in execution proceeding under sub-section (3) of Section 125, can be allowed toraise other grounds also and agitate afresh the liability of maintenance to be provided to the wife and that cannot be the intention of Legislature. The learned single Judge has further observed that sub-section (3) of Section 125 comes into picture only after the failure of the person ordered to pay maintenance under sub-section (1) of Section 125 and naturally it is the said person who has to show that he had sufficient cause due to which he failed to comply with the order. If he is not in a position to show sufficient cause for his failure to comply with the order, the execution as provided in the said sub-section must follow. The learned single Judge, therefore, felt that the question raised n the matter is of importance and needs to be settled finally and, therefore, reference is made to the Division Bench.

8. It will be seen that the learned single Judge proceeded to deal with the question in regard to the scope of sub-section (3) of Section 125 of the Code, on assumption that the decision of the learned single Judge in Ansari's case (cited supra) means to say that it is necessary for the wife to establish even at the time of passing the order under sub-section (3) of Section 125 of the Code that the husband has sufficient means to pay and he declines to comply with the order passed for maintenance under sub-section (1) of Section 125, the Code. In Ansari's case a distress warrant for attachment of the movable of the husband was returned unserved with an endorsement that the petitioner had no property whatsoever. Therefore the Magistrate issued a notice to show cause why he should not be detained in prison. The petitioner replied that he had no property whatsoever and he was unable to pay the amount of maintenance. The Magistrate thereupon held that he was left with no alternative but to send the petitioner-husband to the Jail and accordingly sentenced him to suffer simple imprisonment for a term of one month or until payment of the amount is made. The respondent-wife carried a criminal revision application before the Sessions Court claiming that the sentence awarded by the Magistrate should be enhanced and the Sessions Judge modified the order passed by the Magistrate and directed detention of the husband for a period of one month in respect of defualt of each month and directed the trial Court to issue necessary warrant. In revision before the learned single Judge, the contention of the counsel for the petitioner-husband was that the Courts below were in error in exercising powers under, sub-section (3) of Section 125 of the Code, when it was not established that the petitioner had sufficient

means to pay the maintenance and in spite of it had failed to comply with the order passed by the Magistrate. Accepting that contention, the learned single Judge held that the order of detention was clearly vitiated because both the Courts below had failed to 4record a finding that the husband had means to pay the maintenance amount and still had defaulted. The conclusion was reached by observing:-

"Section 125(1) opens, with the words "if any person having sufficient means neglects or refuses the maintenance" and subsections, (3) of Section 125 provides that "if any person, so ordered, fails without sufficient cause to comply with the order". Reading these two expressions together, it is obvious that the powers under Section 125(3) of the Code could be exercised and the husband could be detained in jail provided it is established that at the time of passing the order he has means to pay and still he declines to comply with the order."

The impugned orders were therefore set aside and the matter was remanded to the Court below to comply with provisions of Section 125(3) of the Code.

9. We have heard Shri Agrawal, the learned counsel for the petitioner and Shri Shivade, the learned counsel for respondents Nos. 1 and 2. Shri Agrawal, the learned counsel for the petitioner, invited our attention to two more decisions of single Judges of this Court wherein the view taken is identical, that under sub-section (3) of Section 125 of the Code, the expression without sufficient cause to comply with the order" conveys that even while proceeding to direct recovery under sub-section (3) of Section 125 of the Code or for sending a defaulter to prison, the trial Magistrate must give opportunity to show cause why he should not be sentenced. It is only when the defaulter fails to show sufficient cause the Magistrate may direct recovery by sentencing him to imprisonment. But in the event the husband proves that he has no means to pay even at the time of Passing the order under subsection (3) of Section 125 of the Code, the Magistrate will not be justified in exercising his powers under sub-section (3) of Section 125 directing the detention of the defaulter.

10. Sub-section (3) of Section 125 of the Code provides that 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, and may sentence such person, for the whole or any part of each month's allowance 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".... That necessarily follows that the powers under sub- section (3) of Section 125 of the Code could be exercised only when it is proved that the person so ordered fails without sufficient cause to comply with the order. This is what the decision in Ansari's case (supra) wants to convey.

11. A similar view has been taken in two more decisions namely Ramnath Laxman Jadhav v. Smt. Kausalya Ramnath Jadhav, 1983 (2) Bow CR 483 and an unreported judgment in Criminal Writ Petition No. 103 1982 decided on July 29, 1982 in the case of Sampat Jeebhau Nikam v. Sou. Jijabai Sampat Nikam, as has been pointed out by the learned counsel for the petitioner.

12. It would be appropriate to refer to the decision of the Supreme Court in Jolly George Varghese v. The Bank of Kochin, AIR 1980 S C 470. The ratio in the said decision, in our opinion, would equally apply in proceed- ings under sub-section (3) of S. 125 of the Code, since the liability of the husband against whom the maintenance amount has been awarded has never wiped out merely because he has suffered imprisonment for default in payment of arrears. While considering the provisions of Section 51 read with Order XXI, Rule 37 of the Code of Civil Procedure in the light of Article 11 of the International Covenant on Civil and Political Rights and Article 21 of the Constitution of India, the Supreme Court observed :-

"The simple default to discharge the decree, is not enough. There must be some element of bad, faith beyond mere indifference to pay,

some deliberate or recusant disposition in the past or alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal as demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs and straitened circumstances will play prominently .......... It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. "

Where the husband is able to prove that he has no means to pay, obviously, the exercise of powers under sub-section (3) of Section 125 of the Code by the Magistrate would be unwarranted.

13. Under these circumstances, we find that there is no occasion to make the reference.

14. It may be stated that the learned counsel appearing for the parties agree that during the pendency of the proceedings the petitioner husband has received the amount of his pension, provident fund, etc. on his superanuation and the said amount is de- posited in his bank account and that the same has been attached by the wife. Therefore, the petitioner husband cannot even urge that he has sufficient cause in not complying with the order nor can it be said that he has no means to pay the maintenance amount. Consequently, the detention order issued by the learned Judge of the Family Court requires no interference in this revision application except with a direction that the said arrest warrant should not be executed in case the amount is paid, by the petitioner-husband.

15. The result, therefore, is that the revision application stands rejected. Rule is discharged.

Revision Dismissed