IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 19870 of 2006(M)
1. RAYINKUTTY, S/O. KOOTHUMADATHIL
... Petitioner
Vs
1. THE STATE OF KERALA, REP. BY THE
... Respondent
2. KADEEJA, D/O. AREEKADAN KUNHEN,
3. THE VILLAGE OFFICER,
4. THE DISTRICT COLLECTOR,
For Petitioner :SMT.K.V.RESHMI
For Respondent :SRI.P.SAMSUDIN
The Hon'ble MR. Justice R.BASANT
Dated :03/03/2008
O R D E R
R. BASANT, J.
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W.P.(C) No. 19870 OF 2006 M
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Dated this the 3rd day of March, 2008
J U D G M E N T
Sufferance of the default sentence under section 3
(4) of the Muslim Women (Protection of Rights on Divorce)
Act – will that wipe off the liability for payment of amounts due
under section 3 of that Act? This is the crucial question for
consideration in this case. Petitioner had suffered an order
under section 3 of the Muslim Women (Protection of Rights on
Divorce) Act(hereinafter referred to as ‘the Act’). He was
directed to pay a total amount of Rs.2,25,000/- under various
heads. The petitioner did not pay that amount. The learned
Magistrate proceeded to take steps under section 3(4) of the
Act to recover the amount. The proceedings against the
petitioner was registered by the learned Magistrate as a
calendar case and a judgment was pronounced in the said
calendar case sentencing the petitioner under section 3(4) of
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the said Act to undergo imprisonment for one year or until the
payment of the amount of Rs.2,15,000/- was made. The
petitioner underwent the sentence of rigorous imprisonment
for one year, it is submitted. But, after the petitioner returned
from the prison, the Magistrate was informed that the
petitioner was having in his possession properties belonging
to him and accordingly the learned Magistrate is now
proceeding with steps to recover the amount due under
section 3 of the Act from the petitioner by resort to recovery
proceedings under section 421 Cr.P.C.
2. The petitioner has come to this Court with a
grievance that the petitioner having already undergone the
maximum sentence prescribed under section 3(4) of the Act is
not liable now to pay the amount and the steps taken are all
without jurisdiction. The petitioner prays that appropriate
orders may be passed to restrain the Magistrate and the
recovery authorities from proceeding further with the steps for
recovery under section 3(4) of the Act read with 421 Cr.P.C.
WPC.19870/06
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3. The question whether a person who has already
undergone the sentence of imprisonment for non-payment of
amounts due is liable to face further proceedings for recovery
has been considered by the Supreme Court in the decision in
Kuldip Kaur Vs. Surinder Singh [AIR 1989 SC 232]. Two
Judge Bench of the Supreme Court has observed thus in
paragraph 6 of the said judgment :
” 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
WPC.19870/06
: 4 :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
WPC.19870/06
: 5 :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. The Parliament in
its wisdom has not said so. Common sense
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
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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.”
(emphasis supplied)
4. In the light of the very clear pronouncement of the
Supreme Court that the undergoing of the default sentence of
imprisonment imposed under section 125(3) cannot efface the
liability and such suffering of sentence cannot be reckoned as
equal to the discharge of the liability, the petitioner’s
grievance cannot also obviously be entertained. The
petitioner is now shown to be having in his possession
properties belonging to him. If within a period of six years
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from the date on which the amount became due the petitioner
has not paid the amount, under section 70 of the IPC the
amount can be recovered under section 421 Cr.P.C. The fact
that the petitioner has undergone the sentence can only mean
that he cannot again be proceeded under section 3(4) of the
Act and sentenced to imprisonment. But, in any view of the
matter, if the amount can be recovered by resort to the
procedure for recovery of the amount under section 421
Cr.P.C. the decision in Kuldip Kaur(supra) is authority for the
proposition that such recovery can be effected. The decision
in Saji Kumar Vs. Soman Pillai [2006 (3) KLT 679] does also
support this contention. The petitioner cannot claim absolution
from liability to pay and discharge the amount merely because
he has undergone the sentence imposed on him under
section 3(4) of the Act. Of course in the light of the decision
in Nityanandan Vs. Radhamani [1980 KLT 537] such
instances shall be rare as effort to recover must have been
exhausted before the order imposing the default sentence is
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passed. But in a rare case where such recovery is found to
be possible, even after the default sentence is undergone
(either because of omission/suppression at earlier stages or
by subsequent acquisition) the courts must pursue the efforts
for recovery.
5. The learned counsel for the petitioner submits that
a distinction must be drawn between the amounts payable
under section 125 Cr.P.C. and the amounts that are liable to
be paid under section 3 of the Act. The argument of the
learned counsel is that whereas section 125 Cr.P.C. speaks
of payment of maintenance every month, section 3 of the Act
contemplates one time payment of the entire amount.
6. That distinction cannot in any view of the matter,
help the petitioner to claim absolution from liability. A
direction for one time payment must be enforced with greater
insistence and strictness. Any attempt to avoid payment of
such liability must be frowned upon as the effect, so far as
beneficiary of the order is concerned, will be graver and of
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greater consequence. In this view of the matter, I am unable
to agree that the dictum in paragraph 6 of Kuldip Kaur(supra)
must be restricted in its application to monthly payments
under section 125 Cr.P.C. and not to one time payment under
section 3 of the Act. Such a distinction does appear to be
totally artificial and not in tune with the purpose that section 3
and section 3(4) have to achieve. The observations in
paragraph 6 extracted above, according to me, do apply with
equal, if not greater, rigor to the claim for recovery under
section 3(4) of the Act.
7. A contention is raised that the learned Magistrate
had unnecessarily resorted to the procedure of registering a
calendar case in proceedings under section 3(4). To my mind
that objection appears to be without any merit as the said
order passed in C.C.5/04 dated 16.11.04 has now become
final without challenge and the petitioner has already
undergone the sentence imposed voluntarily. Attempt to pick
holes in the said order is found to be without any merit. Such
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attempt is unnecessary also now. I am not, hence,
proceeding to consider the said contention in any greater
detail.
8. It follows from the above discussions that the
attempt to recover the amounts due under the order in
MC.17/99 even after the petitioner has undergone the
sentence imposed under section 3(4) is absolutely justified
and the same does not deserve any interference. This writ
petition is, in these circumstances, dismissed.
(R.BASANT, JUDGE)
aks