Judgment Analysis : Laljee Yadav vs The State of Bihar - 16 Sep 2011 - Patna HC
Case Type: Writ in Patna HC
Judgment Date: 16 Sep 2011
Judge Name - Navaniti Prasad Singh, Ashwani Kumar Singh
Relevant Sections: Maintenance u/s 125
Judgment link: http://indiankanoon.org/doc/1402177/
Current Situation:
Petitioner was sent to jail on 5th July 2010 by Principal Judge, Family Court, West Champaran at Bettiah (Judge name is not mentioned) for non-payment of maintenance to wife u/s 125
Application filed for release on 27th Aug 2010 but the learned judge of Family court is passing no orders for his release apparently on the ground that so long as petitioner does not make payment of maintenance to his wife, he shall remain in custody ad infinitum, may be for life.
Counsel's argument is that petitioner has been kept in prison mechanically and that too for months even without any order of remand by the learned Principal Judge, Family Court
Counsel argues against miscarriage of justice by specifying the absurd possibility that the petitioner would have done better by killing his wife where he would be sentenced to life imprisonment which would enable him to be released, in all probabilities, upon completion of 14 years of physical imprisonment as against imprisonment ad infinitum without early release in the present case
Brief Facts:
Case u/s 125 for maintenance filed by petitioner's wife, Munni Devi, on 14th June 2005 in the court of SJM which was transferred to Principal Judge, Family Court on 9th Sep 2005
Order for maintenance at 1000 rs per month was passed on 18th May 2007
Petitioner went for criminal revision application in Patna HC but did not succeed
Wife appealed for non-payment on 14th Nov 2008 and distress warrants were issued against Husband
Pursuant to distress warrant issued, petitioner produced and sent to jail on 5th July 2010 to be produced on 27.07.2010.
On 27.07.2010, Petitioner produced from custody. Husband requested release on 27th August 2010 on the grounds that "his only source of income was physical labour as a daily wage earner and as he was ill and is in custody, he is not able to earn anything for himself much less to make any payment towards maintenance, as ordered." which was refused by Principal Judge, Family Court. The judge is further quite adamant in keeping the petitioner in custody until he pays the maintenance amount even while sending details to HC.
Petitioner is sent back to jail to be produced on 27.08.2010. This process of producing petitioner from jail and then adjournment to date after 1 month continued for next 1 year till 24.08.2011.
On 21.07.2011 Criminal writ petition filed before Patna HC.
On 06.07.2011, Petitioner sent application from jail which is ordered to be kept on record (handwritten application for release on humanitarian grounds unable to pay nor able to pursue the case)
Married for 21 years and has a daughter. Wife is staying away from husband for last 20 years and did not get any help from husband even in the marriage of their daughter.
Both petitioner and wife are illiterate. Petitioner's father is retired from railways and petitioner has some buffaloes and small agricultural land.
Husband filed show cause on 28th Dec 2005 stating that wife was already pregnant at the time of marriage and gave birth to a daughter within 3 months who was obviously not his child. She was sent back to her parents and never returned.
No conjugal relationship between the two for last 20 years.
Respondent wife brought one Balchand Yadav as witness who claimed to be her father. In court application, father name was mentioned as Late Nageshwar Yadav. Also, the Ld. Principal Judge, family court overlooked this discrepancy and made the mistake in his judgment order on 18th May 2007 awarding maintenance - "noticed that AW 4 was the father of the applicant but later, in the same order, he notes that the applicant's father having died, she had filed this application for maintenance without noticing what he has written in the earlier part of his order"
HC rued the fact that lower court had "no discussion much less any finding with regard to the wife being unable to maintain herself or what are the materials to justify the quantification of Rs 1,000/- per month as maintenance to be paid"
HC did reading of bare act of Section 125 and emphasized on "(a) his wife, unable to maintain herself, or " which means that two bare minimum conditions must be satisfied: First is that wife must show that she is unable to maintain herself and the second that her husband has sufficient means but neglects or refuses to maintain. Both the conditions must be satisfied before maintenance can be ordered.
HC further cited the judgment of the Apex Court in the case of Chaturbhuj Versus Sita Bai, AIR 2008 Supreme Court 530, the relevant part of which is quoted hereunder: "6 Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. ... ... ... 7 But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself. ... ... ..."
Obiter dictum
From the above ordersheet, which is quite scandalous to say the least, it is apparent that the learned Judge, true to his word, ensured petitioner is detained in custody without any adjudication whatsoever in most insensitive and mechanical manner. For months together, the learned Judge even does not bother to pass any order of remand even if he was competent to do so. Petitioner's application is consigned to records. This Court wonders that if the petitioner had not come to this Court then probably he would continue in custody ad infinitum.
The law does not contemplate that irrespective of the facts, the wife must live at the total expense of the husband. If the wife is capable of maintaining herself then she cannot say that I will do nothing and insist that the husband provide for her comforts but that does not mean that the husband would live a comfortable life and leave his wife in a miserable state. Status of both must be maintained. Just, by way of illustration, we may state that if the wife is educated, she cannot say that I will make no effort to work which she would have done while living with her husband and now husband must provide me for all my comforts. It is because of that the Legislature in Clause (a) of Section 125 (1) of the Code have used the expression unable to maintain herself. Then the Court has to find out whether the husband has sufficient means to maintain his wife. Here again, similar principle would apply i e sufficient income for the said purpose. We must always keep in mind the status of the respective parties and not try and impose our own standards de hors* the material facts being available on record.
Court noticed that petitioner has pleaded that virtually he is a daily wage earner and if he is kept behind Bars, apart from not providing anything for himself, he cannot provide maintenance and he must remain behind bars. How does he get out of the vicious circle? This only shows the total insensitivity of the Judge on the issue. How has the learned Judge helped the cause of the wife in any manner? How has he furthered the object of the statutory provision, we failed to see.
Ratio
A plain reading of sub section (3) of Section 125 of the Code has various components which are enumerated hereunder: (i) without sufficient cause fails to pay maintenance as ordered. (ii) for every breach (monthly), Magistrate is to issue a warrant for recovery of amount in the manner provided for levying fines (not distress warrants against the person) . (iii) for each month's allowance, remaining unpaid after the execution of the warrant, sentence the person to imprisonment. (iv) for a term which may extend to one month. From the above analysis of Section 125 (3) of the Code, it would be abundantly clear that there is no scope for issuance of warrant and/or distress warrant for the arrest of the delinquent party. The expression warrant used in the section is warrant for levying the amount due in the manner provided for levying fine which is always misunderstood as warrant for arrest, which it is not. This is clear when we take note of the first proviso to Section 125 (3), as quoted above.
From the above statutory provision, we find it difficult to sustain the plea that no sooner there is a default in payment of maintenance, distress warrant for arrest has to be issued. The expression warrant used in sub-section (3), as quoted above, is for the purposes of recovery of the amount due which has to be done in the manner provided for levying fines. The Code itself provides by Section 421 for warrant for levy of fine, the relevant part of Section 421 along with the relevant proviso is quoted hereunder:
Warrant for levy of fine.- When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both of the defaulter; ... ... ...
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender. (Emphasis supplied) We must have notice one specific position. A reference to Section 421 and the proviso would show that it clearly prohibits a person to be imprisoned in execution of warrant levying fine which would simply for recovery of the maintenance and, thus, there is no scope for issuance of any distress warrant for detaining a defaulter husband.
Citations that court relied on:
Habeas Corpus, Writ in HC in 1999 from Bihar -
where the petitioner was in jail for over 3 years without any specific duration of imprisonment for non-payment u/s 125 which was considered illegal detention. Court notice that this is directly applicable to this case.
Chaturbhuj Versus Sita Bai, AIR 2008 Supreme Court 530, the relevant part of which is quoted hereunder: "6 Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. ... ... ... 7 But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself. ... ... ..."
Recovery of amount u/s 125
Karnail Singh -Versus- Gurdial Kaur, 1974 Cri LJ 38 - Court noticed that Section 488 (3) of the Criminal Procedure Code, 1898 which is in pari materia to Section 125 (3) of the present Code that there should be first issuance of warrant of attachment of property and if whole or any part remains unpaid after execution of such warrant and there be no sufficient cause, imprisonment can be ordered. Warrant of arrest directed to be issued without first having recourse to attachment and sale of property would be, thus, illegal.
Om Parkash -Versus- Vidhya Devi, 1992 Cri L J 658 which was a case under the provisions of Section 125 (3) and Pb-Hr HC took similar view
Straightaway warrant of arrest is illegal. Dipankar Banerjee Versus Tanuja Banerjee since reported in 1998 Cr L J 907 wherein it has been categorically held, with reference to Section 125 (3) of the Code, that the Magistrate has no jurisdiction to issue warrant of arrest straightway against a person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the Court without first levying the amount due as fine and without making efforts for realisation thereof in terms of Section 421 of the Code. His Lordship held that the Magistrate, issuing warrant of arrest straightway, was without jurisdiction and not warranted by law.
Duration of detainment: Shahada Khatoon & Others - Versus- Amjad Ali & Others, (1999) 5 Supreme Court Cases 672 . Wife went to SC after losing appeal in Patna HC to keep husband detained until maintenance is paid. SC held that maximum duration of imprisonment cannot exceed beyond one month and fresh petition need to be raised by wife to send husband to imprisonment again.
"The language of sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month. For breach or non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month."
Legal words:
statute => written law
de hors => without / out of scope
pari metria => same subject-matter when statutes relate to the same individual or things, or to the same class of people or thing, or have the same reason or object
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