Rayinkutty, S/O. Koothumadathil vs The State Of Kerala, Rep. By The on 3 March, 2008

     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.

            ```````````````````````````````````````````````````` W.P.(C) No.
19870 OF 2006 M

            ```````````````````````````````````````````````````` 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  WPC.19870/06

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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

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 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

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 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  WPC.19870/06

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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  WPC.19870/06

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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
WPC.19870/06

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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  WPC.19870/06

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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  WPC.19870/06

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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)

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