Rajpati vs Nanhu

Ramesh Sinha, CJ

The applicant has filed this criminal revision being aggrieved by the order dated 28.06.2024 passed in Misc. Execution Case No.37 of 2017 by the learned Judge, Family Court, Ambikapur, District – Sarguja (C.G.), the Family Court declined to take any further action against the respondent/husband for recovery of Rs.47,800/-, which was directed to be paid towards maintenance under Section 125 of the Code of Criminal Procedure, 1973 (CrPC).

Brief facts necessary for disposal of this revision are that the applicant, who is the wife of the respondent, filed an execution case (No. 37/2017) against the respondent for recovery of the arrears of maintenance amount awarded in her favor under Section 125 of the Code of Criminal Procedure. The respondent had defaulted on paying Rs.47,800/-, leading to the issuance of a warrant of arrest. The respondent produced before the executing court on May 25, 2024, and upon refusing to pay the arrears, was sentenced to one month of civil imprisonment. After serving the sentence, the respondent was released. The executing Court held that since the respondent had already served the default sentence, no further action could be taken under Section 125(3) CrPC. The Court reserved liberty for the applicant to take appropriate steps for recovery of the arrears of Rs.47,800/- in accordance with the law and closed the execution proceedings.

Learned counsel for the applicant submits that the learned executing court has completely overlooked Chapter XXXII of the Code of Criminal Procedure, which deals with the levy of fine and its consequences, specifically Section 421 CrPC, which provides for the recovery of fine as if it were a fine, and the same can be levied for recovery of arrears of maintenance. He further erred in closing the execution case without considering Sections 421, 424, and 431 of the Code of Criminal Procedure, which provide for modes of recovery of fines and other amounts, including arrears of maintenance. These provisions could have been utilized for recovering the outstanding amount of Rs.47,800/-. He further submits that the learned executing Court should have considered that non-payment of maintenance is a recurring and continuous cause of action, and therefore, the execution proceedings should not have been closed. The court ought to have kept the execution proceedings open to ensure ongoing enforcement of the maintenance order. He also submits that the learned executing court should have noted that the maintenance amount ordered under the Code of Criminal Procedure is recoverable as a fine, as specified in Section 431 of CrPC, and accordingly, taken steps for its recovery. Moreover, the learned Family Court, instead of closing the execution case, should have issued a fresh warrant of arrest against the non-applicant for non-payment of the maintenance amount and its arrears until its realization. Hence, the order dated 28.06.2024, passed by the Family Court is liable to be set-aside.

I have heard learned counsel for the applicant, perused the impugned order and other documents appended with criminal revision.

From perusal of the impugned order, it transpires that the due to non-payment of the maintenance amount i.e. Rs.47,800/-, a warrant of arrest was issued against the respondent. He was produced before the Family Court on 25.05.2024, wherein, upon being asked, the respondent refused to pay the outstanding amount, and accordingly, in terms of the provisions of Section 125(3) CrPC, he was sent to civil imprisonment for a period of one month. After completion of the said period, the respondent was released from the district jail. Despite the same, the amount of Rs.47,800/- remained unpaid. The Family Court, vide impugned order dated 28.06.2024, relying on the express mandate of Section 125(3) CrPC held that once a person has undergone civil imprisonment for non-payment of maintenance, no further coercive action, such as, repeated imprisonment for the same can be taken.

The law is settled that for every distinct default in payment, a separate proceeding may lie, but for a single defaulted amount, once the prescribed punishment of civil imprisonment has been served, the same cannot be imposed again.

Undoubtedly, it is unfortunate that despite the civil imprisonment, the applicant/wife has not received the maintenance amount. However, as observed by the Family Court, she is not without remedy and is free to pursue appropriate legal recourse for recovery of the amount, in accordance with civil or other proceedings permissible in law.

Upon careful perusal of the impugned order dated 28.06.2024, this Court is of the view that the Family Court has passed a reasoned and legally sound order. There is no jurisdictional error, illegality, or perversity warranting interference under revisional jurisdiction.

Accordingly, the revision being devoid of merit is liable to be and is hereby dismissed.