Iftekhar Husain vs Smt. Hameeda Begum

P.N. Bakshi, J.—On 31-1-1978 the Magistrate passed an order u/s 125 Code of Criminal Procedure by which he awarded Rs. 75/- per month as maintenance allowance to the opposite party and her daughter. Aggrieved thereby a revision was filed which was dismissed on 8-7-1978. On 9th May, 1979, an application was filed on behalf of Smt. Hameeda Begum claiming maintenance allowance of Rs. 3375.00 from 1-8-1975 to 1-5-1979. It was prayed that the amount be realized by attachment. It appears that the property of the applicant was attached. The value of the property according to the report received by the court below was Rs. 332.00. He directed the sale of the property. But since the total amount of maintenance to be realized was Rs. 3525.00, the Chief Judicial Magistrate Shahjahanpur directed the issue of warrant for the arrest of the applicant. He passed an order u/s 125(3) Code of Criminal Procedure for the arrest of the applicant for 145 months or till such time as the payment was made. This order was passed on 31-7-1979. Aggrieved thereby a revision was filed before the Sessions Judge, Shahjahanpur, which was dismissed on 1-4-80. Hence this application u/s 482 Code of Criminal Procedure.

I have heard learned Counsel for the parties at a considerable length and have also perused the impugned order. Section 125 Code of Criminal Procedure runs as follows:

If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month''s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.

A plain reading of this section indicates that two alternatives have been provided therein for the recovery of arrears of maintenance. The first is by the issue of warrant for realisation of the amount due in the manner prescribed for levying the fine. The second is by sending the defaulter to prison for one month for each month''s allowance remaining unpaid. The proviso to Sub-section (3) of Section 125 Code of Criminal Procedure places a restriction upon the issue of warrant for the recovery of any amount due and that restriction is that the application should be made to the Court within a period of one year from the date it becomes due.

In the instant case the position is that the Magistrate has passed an order on 31-1-1978 sanctioning the maintenance allowance of Rs. 75/- per month. The revision was dismissed on 8th July 1978, but no interim stay order was passed by the revisional court, staying the recovery of the amount of maintenance. The amount thus became due on on 31--1--1978 and an application for the recovery of the same should have been filed within one year of such date i. e. by 31-1-1979. The application for recovery of maintenance appears to have been filed on 9th May 1979. In view of the bar of limitation which has been placed by the proviso to Sub-section (3) of Section 125 of Code of Criminal Procedure I have no other alternative but to hold that recovery of arrears of maintenance from 1-8-1975 to 1-5-197(SICK) cannot now be made by the issue of a warrant for recovery in the manner provided for levying fines. In other words recovery by attachment and sale of the movable and immovable property of the applicant can only be made to satisfy the claim of arrears of maintenance for a period of one year prior to the filing of the application. Since the application for recovery was filed on 9-5-1979, therefore, Shrimati Hameeda can only claim maintenance from 9-5-1978 to 8-5-1979 by attachment and sale, of the property of the defaulter-Respondent.

But there is no such limitation prescribed in Sub-section (3) of Section

125 Code of Criminal Procedure which limits the power of the Magistrate to sentence the defaulter of the whole or any part of each month''s allowance remaining unpaid, after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if made sooner. In other words, though the property of the defaulter cannot be attached and sold for the realisation of arrears of maintenance for a maximum period of one year from the date of application, yet the defaulter can be sentenced to imprisonment for recovery of arrears, which may extend beyond this period.

To my mind, out of the two methods which have been prescribed for recovery, which I have enumerated above the first method must be adopted first i.e. recovery by attachment and sale of the property of the defaulter should be resorted to initially and if such recovery proceedings fail to satisfy the amount due to the wife, then the alternative method of sending the husband to imprisonment for recovery of arrears due should be resorted to. The impugned order passed by the Chief Judicial Magistrate Shahjahanpur dated 31st July 1979 indicates that the property which has been attached and is liable to be sold is valued only at Rs. 332/- and that its auction price is not likely to be more than Rs. 150/-. Therefore, he has passed an order sending the applicant to prison for the recovery of the balance due from the total amount of Rs. 3525/-, which remained unrecoverd. He has, therefore, directed the applicant to remain in prison for 145 months. To my mind such an order is not warranted in law. What the Magistrate should have done was to have got the attached property sold, before proceeding to pass an order for sending the applicant to jail. In this connection I would like to observe that according to the allegations in the application dated 9th May 1979, Iftikhar Husain is possessed of a Ata chakki, Dhan Machine, Tube well, Lakri Tal and a Alishan makan (palacial house). If these allegations are correct, it appears rather incredible that the value of all this property should be as low as Rs. 150-/. It becomes all the more incumbent for the Magistrate to attach all these properties and to get them sold, so that he actually knows the correct amount which the property fetches, for the satisfaction of the order of arrears of maintenance. If the auction price is less he can then pass a separate order sentencing the applicant to imprisonment, according to the calculation as mentioned in Sub-section (3) of Section 125 Code of Criminal Procedure. I would, however, like to observe further in this connection that arrears of only one year, as indicated above, can be realized by auction and sale of the property. For the rest, the Magistrate will have to pass a separate order sentencing the applicant to imprisonment for each month''s default, as laid down in Section 125(3) Code of Criminal Procedure.

This application u/s 482 Code of Criminal Procedure is thus allowed in part and the orders of the courts below are modified to the extent that the sale of the attached property shall be held for the recovery of Rs. 900/- arrears of maintenance for one year, and for the rest of the amount viz. Rs. 3575-900 = Rs. 2675/-, the Magisstrate shall pass a subsequent order sentencing Iftikhar Husain to imprisonment according to the calculations set forth in Section 125 Code of Criminal Procedure.