RPFC No.63 of 2008

3rd June, 2008

Respondent Counsel: SANTOSH KUMAR

Cases Cited:
Kuldip Kaur Vs. Surinder Singh, AIR 1989 SC 232 [Para 8]
Shantilal Vs. State of M.P., 2008(1) KLT 503 [Para 9]
Emperor Vs. Beni (FB), AIR 1938 Allahabad [Para 14]
Moddari Bin Vs. Sukdeo Bin, AIR 1967 Calcutta 136 [Para 16]
Omanakuttan Pillai Vs. State of Kerala, 2001 ALL MR (Cri) JOURNAL 44=2001(1) KLT 129 [Para 17,27]

JUDGMENT

JUDGMENT :- Can a defaulter be sentenced to undergo rigorous imprisonment under Section 125(3), Cr.P.C. for non payment of maintenance? Does the expression "imprisonment" in Section 125(3), Cr.P.C. take within its sweep rigorous imprisonment also? These are the questions of law that are raised in this R.P.F.C..

2. To the crucial and vital facts first : the petitioner who is undergoing imprisonment now had suffered an order under Section 125, Cr.P.C. to pay maintenance to the claimants. He did not pay such amounts and this obliged the Family Court to initiate proceedings against him under Section 125(3), Cr.P.C. The amount remained unpaid. By the impugned order passed under Section 128, Cr.P.C., for the default committed in payment of maintenance for the period of twelve months the petitioner was sentenced to undergo rigorous imprisonment for a period of twelve months. The amount earned as wages was directed to be paid to the claimants.

3. The learned counsel assails the impugned order on two specific grounds. First of all, it is contended that the order passed is too harsh and insensitive inasmuch as the petitioner has been sentenced to undergo imprisonment for a period of 12 months for the default which is the maximum period to which a defaulter can be sentenced. Leniency must, at any rate, have been shown. It must be remembered that the petitioner is now forced to undergo imprisonment only because of his genuine difficulty to raise the amount for discharging the liability, contends counsel.

4. It is next contended that imposition of rigorous imprisonment is impermissible under Section 125(3), Cr.P.C. At any rate, prescription that the imprisonment must be of the graver variety rigorous, is not justified in the facts of this case.

5. It will be appropriate straight away to refer to Section 125(3), Cr.P.C. which I extract below :

"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 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.

Explanation : If a husband has contracted marriage with another, woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him."(Emphasis supplied)

6. Section 125(3), Cr.P.C. confers on the Court the power to "sentence a person to imprisonment" for the default that remains after execution of the warrants. The first Question that arises for consideration is whether the sentence so imposed is a punishment or not; because that must help the Court vitally to decide the crucial question.

7. It has been held clearly and categorically by the Supreme Court that the default sentence imposed is only a mode of enforcement of the amount due and it is not punishment in the sense in which the term is ordinarily understood. Though Section 125(3), Cr.P.C. employs the expressions "sentence", such liability to undergo imprisonment cannot be held to be a punishment as contemplated under section 53 of the Indian Penal Code.

8. The decision of the Supreme Court in Kuldip Kaur Vs. Surinder Singh (AIR 1989 SC 232) makes the position crystal clear. In paragraph 6 of the said judgment it has been clearly held that the sentence is imposed under Section 125(3), Cr.P.C. only as a mode of enforcement of the direction to pay the amount of maintenance and not as a punishment. The default sentence under Section 125(3), Cr.P.C. cannot hence be reckoned as a punishment as such. The Supreme Court in that case was considering the question whether the default sentence, if undergone shall wipe off the liability.

9. Even a sentence of imprisonment in default of fine, it has been held by the Supreme Court, is not a punishment. It is only a penalty which a person incurs on account of non-payment of fine. In paragraph 31 of the decision in Shantilal Vs. State of M.P. (2008(1) KLT 503) the Supreme Court has observed so.

"The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or "otherwise". A term of imprisonment ordered in default or payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount."

10. I do in these circumstances take note of the first contention that a sentence of imprisonment imposed under Section 125(3), Cr.P.C. is not a punishment stricto sensu; but is only a mode of recovery/enforcement of a defaulted payment. The power given to a Magistrate "to sentence a person to imprisonment" does not mean that the person is punished for non payment of the amount; but it only reveals the anxiety of the law to ensure recovery by directing detention of the person concerned in a prison. Though the expression used is "sentence a person to imprisonment", it must be noted that the attempt is only to detain/confine a person in prison to compel him to pay the amount. It is actually and really only a direction "to detain in prison to enforce the direction to Pay".

11. Having so taken note of the nature of the direction to undergo imprisonment in default of payment of fine, one must immediately take note of Section 3(27) of the General Clauses Act which defines imprisonment. I extract the relevant portion below :

"3.Definitions.- In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context."

27. "Imprisonment" shall mean imprisonment of either description as defined in the Indian Penal Code; (45 of 1860)"

12. The definition of the expression imprisonment as such is not available in the Indian Penal Code; but deal in with punishments in Sections 53 in clause fourthly there is reference to the punishment of imprisonment. I extract Section 53 below :

"53.Punishments.- The punishments to which offenders are liable under the provisions of this Code are- _ _ (********) Fourthly. - Imprisonment, which is of two descriptions. namely :- (1) Rigorous, that is, with hard labour; (2)Simple; _ _" [Emphasis supplied]

13. What I intend to note now is that there is no definition of "imprisonment" as such in the I.P.C. But while enumerating the various punishments possible under law there is imprisonment which can be of two descriptions- rigorous and simple. Section 125(3), Cr.P.C. does not, as seen earlier, refer to the punishment of 'imprisonment". It deals only with the direction to detain a person in prison, as reasoned earlier.

14. The learned counsel was requested to research and the learned counsel has brought to my notice three decisions of various Courts having a relevance on this question. The first decision is the decision of the Full Bench of the Allahabad High Court in Emperor Vs. Beni (FB) (AIR 1938 Allahabad 386). We find the following observations in the said judgment which has some bearing and impact on the question.

"We would remark further that the warrant of imprisonment under S.488, Criminal P.C. the form of which is to be found in Sch. 5. No.XL, contemplates a sentence of more than one month's rigorous imprisonment in the case of a person who has defaulted in payment for more than one month. The warrant runs :

......... and whereas it has been further proved that the said (name) in wilful disregard of the said order has failed to pay rupees .......being the amount of the allowance for the month (or months) of. And thereupon an order was made adjudging him to undergo simple (or rigorous) imprisonment in the said jail for the period of ..............."(Emphasis supplied)

15. Though the question is not considered in detail the above observations of the Full Bench appear to support the view that it is possible to impose rigorous imprisonment for default in payment of the maintenance amount under Section 125(3), Cr.P.C..

16. The next decision on the point is the decision of the Division Bench of the Calcutta High Court in Moddari Bin Vs. Sukdeo Bin (AIR 1967 Calcutta 136). The learned Judges in that decision have taken the view after detailed discussion that it is perfectly permissible to impose a sentence of rigorous imprisonment for the default in payment of maintenance allowance which remains unrecovered. The discussion and conclusion appear in paragraph 11, 12 and 13 of that decision I shall deal with this decision in greater detail later.

17. Thirdly, the learned counsel for the petitioner places reliance on the decision in Omanakuttan Pillai Vs. State of Kerala (2001(1) KLT 129 : [2001 ALL MR (Cri) JOURNAL 44]). This decision has no direct bearing on the question. The learned counsel only points out that it has been held by the Kerala High Court that even in a prosecution under Section 138 of the Negotiable Instruments Act imposition of a sentence of rigorous imprisonment should not ordinarily be resorted to. The learned counsel contends that the said decision is relied on only for the purpose of highlighting the degree of care and caution which must be employed by a Court before choosing to impose a sentence of rigorous imprisonment. While Interpreting the ambit of the expression "imprisonment" in Section 125(3), Cr.P.C. also such care and caution must be employed, it is urged.

18. I have been taken through the detailed decision given by the Division Bench of the Calcutta High Court which refers to the earlier decision of the Full Bench of the Allahabad High Court. The learned Judges appear to have followed the definition of imprisonment in Section 53 of the Indian Penal Code which I have already extracted above. Obviously this is done by reference to Section 3(27) of the General Clauses Act which also has been extracted by me earlier.

19. The learned counsel submits that the term imprisonment is not defined in the Indian Penal Code. Of course, Section 53 refers to that. But Section 53 deals with punishment and in the instant case while considering Section 125(3), Cr.P.C. we are not concerned with any punishment as such as explained in the two decisions of the Supreme Court referred above. It is not a punishment stricto sensu which is imposed when an order is passed under Section 125(3), Cr.P.C. read with 128, Cr.P.C. In Section 3 of the General Clauses Act, it is made very clear that the definitions can be followed if only there is nothing repugnant to the subject or context. The learned counsel submits that reference to imprisonment in clause fourthly of Section 53 which deals with punishments that can be imposed on an offender cannot blindly and mechanically be imported while attempting to understand the sweep of the expression "imprisonment" in Section 125(3), Cr.P.C. I do find merit in this contention of the learned counsel.

20. The learned counsel then points out that Section 67 of the Indian Penal Code is of crucial relevance in the present context. Section 67 declares that where an offence is punishable with fine only, the offender cannot be sentenced to any rigorous imprisonment in default. I extract below Section 67.

"67.Imprisonment for non-payment of fine, when offence punishable with fine only.-

If the offence be punishable with fine only, (the imprisonment which the Court imposes in default of payment of the fine shall be simple, and) the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case."

21. The learned counsel points out that this contention was urged before the Division Bench of the Calcutta High Court; but the same did not find favour with the learned Judge and the same was not accepted. Section 67 would apply only if an offence is involved and such offence is punishable with fine, it was contended before and accepted by the Calcutta High Court. Inasmuch as Section 125(3), Cr.P.C. does not deal with any offence and no offence punishable with fine only is involved, it was held by the Division Bench that the stipulations of Section 67 cannot be applied while understanding the sweep of the expression imprisonment under Section 125(3), Cr.P.C..

22. With great respect to the learned Judges, I am afraid, a different view as canvassed by the learned counsel commends itself for acceptance. Even if the accused had committed an offence and he were punishable under law with fine only, a default sentence of rigorous imprisonment cannot be imposed. If that be the anxiety of law, certainly rigorous imprisonment in default should not be imposed on a defaulter under Section 125(3), Cr.P.C. who has committed no offence and who is not punishable also and on whom the default sentence is imposed only as "a mode of enforcement" as held by the Supreme Court in the two decisions referred to earlier.

23. A sentence of rigorous imprisonment involves involuntary hard labour. The said punishment is a harsh sentence which is permissible under law. It is dehumanising. It violates human rights. Whether such a punishment is at all possible and permissible, given the humane and humanist motivations of the Indian Constitution, is a question which may have to be considered in an appropriate case at the appropriate time. At any rate the course of compelling a person to do hard labour against his volition and wishes, even if it can be resorted to, can be resorted to only if he richly deserves it. In a case where a person is guilt of an offence punishable with imprisonment and has been punished under law, such course may be permissible as such person can be held to richly deserve the same because of his past culpable conduct. But non payment of the maintenance amount is no offence by itself. It is not punishable with any imprisonment. At worst it can be reckoned only as the inability/failure to pay an amount which can be recovered as if it were a fine under Section 125(3), Cr.P.C. The mere fact that Section 125(3), Cr.P.C. prescribes that the defaulted amount can be recovered in the manner provided for levying fines cannot lead a Court to the conclusion that the defaulter has committed any offence or that he is punishable with any punishment prescribed by law other than fine.

24. If that be so, the principle underlying Section 67 of the I.P.C. must certainly be imported while attempting to understand the contours of the expression "imprisonment in Section 125(3), Cr.P.C. Though Section 67, I.P.C. is not strictly applicable, any Court having a commitment to the values of the Constitution including its compassion and the zealous attempt to protect individual liberty and human rights must be persuaded to take the view that for the mere default of the payment of an amount though it can be recovered by the procedure for levying fines, imposition of a sentence of rigorous imprisonment must be avoided. While construing the ambit of the expression imprisonment in Section 125(3), Cr.P.C. the principles underlying Article 21 of the Constitution as also the statutory provision in Section 67 of the I.P.C. must inform the Court. They must persuade the Court to read down the Section to mean that the imprisonment which can be imposed as a mode of recovery/enforcement cannot take in the option to impose a sentence of rigorous imprisonment obliging the prisoner to render involuntary hard labour.

25. To come to the conclusion that rigorous imprisonment can be imposed, reliance was placed by the Calcutta High Court and the Allahabad High Court on Form XL of Schedule 5 of the former Code. That form is not now available. Form 18 in the Second Schedule to the present (1973) Code does not contain anything to indicate that the option of imposition of rigorous imprisonment is available to the Court for default in payment of maintenance amount. The form In the earlier Code has been extracted above in paragraph 13 while referring to the decision of the Allahabad High Court. The relevant portion in the present Form 18 is extracted below to make out the crucial distinction.

FORM No. 18

WARRANT OF IMPRISONMENT ON

FAILURE TO PAY MAINTENANCE

(See section 125)

To the Officer in charge of the Jail at.....

WHEREAS..................... (name, description and address) has been proved before me to be possessed of sufficient means to maintain his wife ..............(name) (or his child ..........(name) of his father or mother ................ (name), who is by reason of .............(state the reason) unable to maintain herself (or himself)) and to have neglected (or refused) to do so, and an order has been duly made requiring the said ............ (name) to allow to his said wife (or child or father or mother) for maintenance the monthly sum of rupees ............ and whereas it has been further proved that the said ............ (name) in wilful disregard of the said order has failed to pay rupees ................ being the amount of the allowance for the month (or months) of............;

And thereupon an order was made adjudging him to undergo imprisonment in the said jail for the period of.....................;

This is to authorise and require you to receive the said ................ (name) into your custody in the said jail, together with this warrant, and there carry said order into execution according to law, returning this warrant with an endorsement certifying the manner of its execution.

Dated, this.......day of ..........20...............” (Emphasis supplied)

26. I must assume that the framers of the present code, with the march of civilisation felt that it is not necessary to authorise the Court to impose a sentence of rigorous imprisonment for default in payment of the maintenance amount. That may only be a meagre indication. I have adverted to the same only because the Full Bench of the Allahabad High Court and Division Bench of the Calcutta High Court appear to have been influenced by that circumstance also.

27. The learned counsel further points out that in various other sections of the Code where a mere defaulter (non offender) is permitted to be imprisoned, he has been zealously saved of the obligation to undergo rigorous imprisonment for default. Counsel points out Sections 250(3), 345(1), 122(7), 358(2), 358(3), 359 and 446 where it has been made clear that only simple imprisonment can be imposed while enforcing orders to pay amounts. The policy of law that a non offender should not be compelled to undergo rigorous imprisonment can be deciphered and discerned from these stipulations. Though such a specific stipulation is not there in Section 125(3), Cr.P.C. there is no satisfactory indication to conclude that the omission to make such specific stipulation was to enable imposition of rigorous imprisonment on a defaulter under Section 125(3), Cr.P.C. At any rate, such non specification/omission to indicate clearly that the graver option is not available under Section 125(3), Cr.P.C. does not persuade me to hold that such option is available to a Court under Section 125(3), Cr.P.C. The process of interpretation can and should certainly persuade the Court to fill up gaps in the legislation and move towards the ideal law which will cater to the constitutional goals and promised destinations. To avoid infliction of the obligation to do hard labour on defaulter who is unable to pay the amounts is certainly one step forward to such promised destination, I feel. Along with the rationale underlying Section 67 of the I.P.C., this can also be taken into account to correctly understand and interpret the expression "imprisonment" appearing in Section 125(3), Cr.P.C. I must in this context take note of the decision in Omanakkuttan [2001 ALL MR (Cri) JOURNAL 44] (supra) also where Hon'ble Justice Kurian Joseph has cautioned the Courts about the need for care before a sentence of rigorous imprisonment is imposed.

28. The learned counsel fairly points out that the anxiety of the Family Court to do justice to the claimants is clearly reflected in the order passed by which it is directed that remuneration earned for such hard labour should be paid to the claimants who have been denied maintenance by the petitioner. Laudable though the sentiment be, I am not persuaded to agree that such a yearning to do better justice to the claimants is by itself sufficient to justify imposition of the harsh consequence of rigorous imprisonment on a defaulter under Section 125(3), Cr.P.C..

29. The rationale underlying Section 125(3), Cr.P.C. makes it clear that the law wants the direction to pay maintenance to be enforced and executed strictly. Under the threat of detention in a criminal prison compliance is insisted. I am of the opinion that going by the purpose which such detention/imprisonment has to serve also, it is not necessary to impose the harsh punishment of rigorous imprisonment under Section 125(3), Cr.P.C. The threat of being sent to prison is according to me by itself sufficient deterrent and it is not necessary to cap the same with the further direction that such prisoner should undergo rigorous imprisonment with obligation to render hard labour.

30. It follows from the above discussions that the expression 'imprisonment" in Section 125(3), Cr.P.C. must receive a more liberal and humane interpretation consistent with the constitutional ideals as to avoid the consequence of subjecting such a defaulter to the ordeal of rendering involuntary hard labour for the mere indiscretion of failure/refusal to make payment of the maintenance amount.

31. I do in these circumstances come to the conclusion that it is impermissible to impose a sentence of rigorous imprisonment on a defaulter under Section 125(3), Cr.P.C. I respectfully disagree with the conclusions/observations of the Full Bench of the Allahabad High Court and the division Bench of the Calcutta High Court.

32. What remains to be considered is only whether the sentence of imprisonment for 12 months is justified in the facts and circumstances or this case. I do take note of the fact that the petitioner continues in custody even now unable to make payment of the defaulted amount. He is unable even to engage a counsel of his own. It will not be unreasonable or irrational for the Court now to assume that genuine financial difficulty is prompting the petitioner not to pay the amount. I am in these circumstances, satisfied that the length of the period of imprisonment for default can be reduced and the petitioner who remains in custody from 31-7-2007 can be directed to be released from custody holding that the period of imprisonment already undergone is sufficient for the default. I may hasten to note that though the maximum sentence that can be imposed is imprisonment for one month, for the default of the whole or the part of the maintenance amount for every month, it is not imperative or invariable that such maximum sentence must be imposed in every case. At any rate, in the facts of this case where the petitioner is undergoing imprisonment from 31-7-2007 and is unable to get himself liberated from prison by making payment of at least the balance amount payable, I am satisfied that such leniency can be shown. The direction that the amount earned by labour rendered shall be payable to the claimants shall be carried out.

33. In the result, this R.P.F.C. is allowed in part. It is held that only a sentence of simple imprisonment can be imposed under Section 125(3), Cr.P.C.. The sentence imposed is reduced to the period of imprisonment already undergone by the petitioner. He shall be released from custody forthwith if his further detention is not required in connection with any other case.

34. I place on record my appreciation for the good and valuable assistance rendered by Adv. Sri George Sebastian, a young counsel who has accepted the request of the Court to appear in this case to assist the Court and render legal aid to the petitioner.

35. The Registry shall furnish copy of this order to all the Family Courts.

Ordered accordingly.