Rayinkutty vs The State Of Kerala And Ors. on 3 March, 2008

    Rayinkutty vs The State Of Kerala And Ors. on 3/3/2008

JUDGMENT

   R. Basant, J.

   1. 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 (he 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 and a
judgment was pronounced in the said calendar case sentencing the petitioner
under Section 3(4) of 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 tot his 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.

   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 (he Supreme Court in the
decision in Kuldip Kaur v. Surinder Singh . 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 to 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 lis to oblige a person liable to pay the monthly allowance
who refused to 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 cause1 to comply with he order. It
would indeed be strange to hold that a person who 'without reasonable cause'
refused 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 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 recovery 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 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 v. Soman Pillai 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 v. 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 passed. But in a rare case where such recovery 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 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). The 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 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.

   9. This writ petition, in these circumstances, dismissed.