Smti. Sabreena Prem v. The State And ANR

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISION JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE PARTHA SARATHI CHATTERJEE CRR/56/2024 Smti. Sabreena Prem ... Petitioner Vs The State and Another ... Respondents For the petitioner : Mr. Siddhartha Singha For the State : Mr. Sumit Karmakar For the respondent no. 2 : Mr. Arul Prasanth Heard on : February 05, 2025 Judgement on : February 10, 2025 PARTHA SARATHI CHATTERJEE, J.

1.

The present revisional application has been filed at the instance of the petitioner/wife, Smt. Sabreena Prem, under Section 19(4) of the Family Courts Act, 1984 challenging the legality, propriety, and correctness of the order dated November 14, 2024, passed by the learned Judge, Family Court at Port Blair, District Andaman, in Misc. Execution Case No. 23 of 2024. The case arose from an application filed by the petitioner/wife under Section 128 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). By the order, the Misc. Case was dismissed, holding it to be time-barred in accordance with the proviso to Section 125(3) of the Code.

2.

The essential facts which need to be adumbrated for the effective adjudication of this application are that petitioner, namely, Smt. Sabreena Prem (hereinafter referred to as 'the wife') married the respondent no. 2, namely, Shri R. Prem Kumar (hereinafter referred to as 'the husband' and began their marital life together. Two daughters were born of their marriage. Due to disputes in their conjugal life, they began living separately. 3.

The husband is employed as a Head Clerk in the E.E. Office, PG Division, Chatham Power House, Port Blair. Due to his negligence to maintain his wife and their two daughters, an application under Section 125(3) of the Code was filed by the wife on her behalf and on behalf of the two daughters, which was registered as Misc. Case No. 122 of 2008, before the learned Family Court. 4.

Record reveals that the Misc. Case was referred to the Lok Adalat and was disposed of on compromise by an order dated 28.11.2010 in the following terms:

"For the time being the husband will pay the sum of Rs. 5000/- per month to the wife, who shall spend the same amount on account of maintenance for herself and also for her two daughters, which includes their educational expenses also.

The wife shall after paying the school expenses will supply the original documents to the husband, who will immediately reimburse the exact amount, which the petitioner/wife paid from the following month of the date of production of the receipts/documents.

The above payment will be made by way of depositing the amount in the bank account of the wife/petitioner, who shall supply the bank account number to the husband either by herself or through her Ld. Lawyer

to the Ld. Lawyer of the husband during the court of tomorrow.

In case of breach of either of the parties, the aggrieved party will be entitled to enforce before the court this award.

This award is without any prejudice to the rights an contentions in the pending proceeding or future proceeding, if commence by either of the parties.

Let a copy of this award be communicated to the department of the husband at once.

Both parties shall get the certified to be true copy of the order free of cost."

5.

On 13th February, 2024, the petitioner/wife filed an application under Section 128 of the Code, contending that the husband had paid maintenance as per the Lok Adalat's order dated 28.11.2010 till September 2019. However, the husband failed to pay maintenance for the period from 1st October 2019 to 30th September 2020 (12 months), amounting to Rs. 60,000/-, which prompted the wife to seek enforcement of the order through recovery of the said amount from the husband.

6.

The husband opposed the application by filing a written objection. The primary defence taken in that application was that the wife failed to provide evidence that she had received maintenance from him until September 2019, or that any portion of it was used for the educational expenses of the daughters or she supplied any document showing payment of educational expenses of the daughter. He also questioned how she had managed to support herself during that period without maintenance. The husband claimed that he had borne the

entire expense for the maintenance and education of the daughters, who have reached the age of majority and are now settled in their lives. 7.

As mentioned earlier, by the order under assail in this revisional application, the Misc. Case was dismissed. For better appreciation of the issue involved in this application, it would be apt to reproduce the operative part of the order, which is as follows:

"Having heard both side and also considering the facts and circumstances as described and also considering the facts and circumstances as described above and it is also found from the gracious judgment of the Hon'ble Bombay High Court in 1988 SCC OnLine Bom 377 the warrant cannot be issued for a period in excess of one year in respect of section 125(3) for recovery of maintenance amount as mentioned in the case Gunwant Kawadoo vs. Kawadoo Narayanrao Katore. In view of the submission advanced by both sides and also perusal of the gracious judgment of the Hon'ble Bombay High Court and also in view of the Section 125(3) Cr.P.C. I find that in view of section 125(3) Cr.PC this petition is not tenable as prayed for because it is beyond the time limit and liable to be dismissed. The application under section 128 of Cr.PC filed by the petitioner on 13.02.2024 stands dismissed on contest."

8.

Mr. Singha, the learned advocate representing the petitioner/wife, argued that the wife had filed an application under Section 128 of the Code for the enforcement of the maintenance order. However, the Family Court had erred in its conclusion, stating that the application could not be entertained due to the bar in Section 125(3) of the Code. To support his argument, he referred to two decisions: AIR 1989 SC 232 (Smt. Kuldip Kaur vs. Surinder Singh & Anr.)

and 2010(1) Crimes 810 (Mad)(P. Vaithi vs. Kanagavalli & Anr.) & 2013(4) Crimes (SC) 371 (Poongodi & Anr. vs. Thangavel). Mr. Singha contended that Section 125 of the Code is a provision aimed at providing social justice and is a piece of beneficial legislation. He argued that it should be interpreted in a way that protects the rights of a woman who has been abandoned by her husband. He requested that the order under challenge be set aside, and that a direction be issued to the lower court to enforce the maintenance order of maintenance. To buttress his such argument, he relied upon a decision, reported at AIR 2020 SC 1064(Sanjeev Kapoor vs/ Chandana Kapoor & Ors.) 9.

In rebuttal, Mr. Prasanth, learned advocate for the opposite party, argued that the present revision is not maintainable. He stated that an appeal against a final order of a Family Court should be filed before a Division Bench of the High Court, as per Section 19(1) of the Family Courts Act, 1984. While arguing on merits, he pointed out that the maintenance order was passed in 2010, and the wife's application to enforce it only came in 2024. He questioned how the wife had managed without maintenance for such a long period. Referring to the Lok Adalat order, he emphasized that the wife had not provided any documents showing she had contributed to the daughters' education. He asserted that the husband had borne all the expenses for the maintenance of the daughters.

He asserted that the husband had always borne the full responsibility for the maintenance of the daughters, arranged their marriages, and that both daughters are now settled in their lives. As such, the daughters did not join the wife in filing the application. Mr. Prasanth laid immense emphasis on an unreported decision by a coordinate Bench of this Court in CRR 692 of 2018, titled Rina Sarkar vs. Kajal Sarkar.

proviso to sub-section (3) of Section 125 of the Code, arrears of maintenance beyond twelve months from the date they become due cannot be recovered. He further contended that the person in whose favour the maintenance order is passed has a civil remedy.

10.

In reply, Mr. Singha referring to three decisions reported at 2008 Supreme (Jhk) 958 (Md. Guizar Mian @ Guizar Mian vs. Zohra Khatoon), 1990 CrLJ 927 (kar) ( Sateppa Basappa vs. Ku. Geetha) & 2008 Supreme (Pat) 1564 (Raj Kumar Sah vs. State of Bihar) asserted that a revision lies against an order passed by a Family Court on an application under Section 125 of the Code. 11.

Therefore, in the facts and circumstances of this case, and based on the arguments advanced by the parties, two points arise for determination in this revision, which are as follows:

i. Whether a revision lies against an order passed by a Family Court under Chapter IX of the Code?

ii. Whether the proviso to Section 125(3) creates any bar or restriction on the enforcement of a maintenance order under Section 128 of the Code?

12.

Before determining Point No. 1, it would be appropriate to reproduce certain provisions of the relevant enactments. Section 7(2) of the Family Courts Act, 1984, which defines the jurisdiction of the Family Court, specifies that subject to the other provisions of this Act, a Family shall also have and exercise -(a) the jurisdiction exercisable by a Magistrate of the first class under ChapterIX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and such other jurisdiction as may conferred on it by any other enactment. Needless to state, the Chapter IX of

Code of Criminal Procedure, 1973 contains four sections, namely from Section 125 to Section 128.

13.

Section 10(1) of the Family Courts Act which prescribes general procedure of a Family Court, lays down that subject of the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purpose of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the power of such Court, while Section 10(2) of the Family Court Act prescribes that subject of the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

14.

Thus, a plain reading of the provisions of Section 10 reveals that proceedings under Chapter IX of the Code before a Family Court shall be regulated in accordance with the provisions of the Code and the rules framed thereunder.

15.

Section 19(1) of the Family Courts Act, 1984 provides that save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. Sub-section (2) which craves out an exception or operates as a saving clause to Sub-section (1) specifies that no appeal shall lie

from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter-IX of the Code of Criminal Procedure, 1973 (2 of 1974). Sub-section (4) provides that the High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness as interlocutory order, and as to the regularity of such proceeding. Sub-section (5) states that except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.

16.

Thus, on perusal of Section 19(2) of the Family Courts Act, it becomes clear that no appeal shall lie from an order passed under Chapter IX of the Code. It is relevant to note that the same language as was used in the first part of Section 397 of the Code has been employed in Section 19(4) of the Family Courts Act. Additionally, the use of the word 'revision' in sub-section (5) gives a clear indication that the legislature intended to provide for a revision from an order passed by a Family Court under Chapter IX of the Code. 17.

It is important to note that there is a significant difference between appellate and revisional powers. The former is co-extensive with the original court's jurisdiction in terms of appraising and appreciating evidence and reaching findings on facts, while the latter involves the supervisory jurisdiction of a superior court. In revision, the court confines its inquiry to the legality, propriety, and correctness of the decision under challenge, examines whether the lower court acted within the bounds of its jurisdiction and whether it failed to exercise the jurisdiction vested in it.

18.

An appeal is a creature of statute, and unless the statute expressly confers the right of appeal, no appeal lies. The remedy provided under Section 125 is summary in nature, and the Code itself does not provide for an appeal from an order passed under Section 125. Therefore, it can be concluded that the legislature did not intend for an order of maintenance passed under Chapter IX to be subject to an appeal. Instead, the power of superintendence through revisional jurisdiction has been conferred upon the High Court for orders passed by a Family Court under Chapter IX. Hence, expressing agreement to the proposition set by the decisions reported at 2008 Supreme (Jhk) 958 (Md. Guizar Mian @ Guizar Mian vs. Zohra Khatoon), 1990 CrLJ 927 (kar) ( Sateppa Basappa vs. Ku. Geetha) & 2008 Supreme (Pat) 1564 (Raj Kumar Sah vs. State of Bihar), it is concluded that a revision under Section 19(4) of the Family Courts Act lies from an order passed by a Family Court under Chapter IX of the Code, and such revision shall be registered as a Criminal Revision. 19.

Now, for the determination of Point No. 2, it would be appropriate to reproduce the provisions of Section 18(2) and 125(3) of the Code, along with its first proviso, which are as follows:

"S.18(2) An order passed by a Family Court under the Code of Criminal Procedure, 1973 shall be executed in the manner prescribed for the execution of such order by that Code.

S.125(3) 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 for the

maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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..."

20.

Thus, in accordance with Section 18(2), an order of maintenance passed by a Family Court under Chapter IX of the Code shall be enforced and executed in the manner prescribed under the Code. Section 128 of the Code empowers the Court to enforce the order of maintenance, stating that such an order may be enforced by any Magistrate in any place where the person against whom it is made may be, once the Magistrate is satisfied as to the identity of the parties and the non-payment of the allowance, or, as the case may be, the expenses due. 21.

Therefore, upon being satisfied as to the non-payment of the allowance or expenses due, the Magistrate can enforce the order of maintenance in exercise of the power conferred under Section 128 of the Code. Section 125(3) prescribes the mode of enforcement, which includes issuing a warrant for levying the amount due in the manner provided for levying fines (as prescribed in Section 421 of the Code) and sentencing to jail. However, the power to issue such a warrant and to sentence to jail is limited by the first proviso of sub-section (3), meaning that these powers can only be exercised subject to the conditions set out in the proviso. 22.

In the decision of Kuldip Kaur (supra), it was held that a distinction must be made between the mode of enforcing recovery and the actual recovery of arrears. Sentencing someone to jail is a mode of enforcement, not a means of satisfying the liability. The liability can only be satisfied through the actual payment of arrears.

Similarly, in P. Vaithi (supra), a Single Bench of the Madras High Court observed that proceedings under Section 125 of the Code are quasi-civil and quasi-criminal in nature. In so far as it decides the civil rights of the parties to claim maintenance, it is civil in nature and when an order is not obeyed, the court imposes a punishment of imprisonment of one for every breach, then the proceeding is criminal in nature. The Bench further noted that if a maintenance order is not obeyed, the aggrieved person has two options to recover the arrears: they can either approach the court under Section 125(3) or invoke the provisions of Section 128. In the former case, the statute prescribes a period of limitation, whereas in the latter, no limitation is provided. 23.

In the decision of Poongodi & Anr. (supra), it was held that the proviso to Section 125(3) CrPC should not be construed as a fetter on the entitlement of the claimants to receive arrears of maintenance beyond a period of one year preceding the date of filing the application under Section 125(3). The Hon'ble Court observed that the proviso only affects the procedure for recovery of maintenance under Section 125(3), such as the levy of fines and detention for default, which would not be available to a claimant who has delayed asserting their right and has not approached the Court within one year of the accrual of the entitlement to maintenance. However, the ordinary remedy for recovering maintenance, namely a civil action, would still be available. The same proposition was reiterated in the decision of Rina Sarkar (supra). 24.

Notably, Section 421 of the Code prescribes two types of warrants: one for the levy of the amount by attachment and sale of any movable property belonging to the offender, and another directing the collector of the district (treated as a certificate for the recovery of arrears of land revenue) to recover the amount as arrears of land revenue from the movable or immovable property of the defaulter. However, the proviso to Section 125(3) prohibits the issuance of any warrant after the period specified therein. In a decision, reported at (2021) 4 SCC 324 (Rajnesh vs. Neha & Anr.), while enumerating the modes of enforcement of maintenance orders under

various enactments, under the sub-heading of enforcement of order of maintenance under section 128 of the Code, the Hon'ble Court referred to Section 18 of the Family Courts Act, and Section 125(3). Essentially, aside from the procedure prescribed in Section 125(3) read with Section 421, no other mode for the recovery of arrears of maintenance is apparent in the Code. A court of law cannot be called upon to rewrite the provisions of any enactment or substitute, introduce, or incorporate any provision within an enactment.

25.

Therefore, based on the discussion above, the only conclusion that can be drawn is that the first proviso to Section 125(3) should not be construed as an absolute bar or fetter on the entitlement of the claimants to receive arrears of maintenance beyond a period of one year preceding the date of filing the application under Section 125(3) but in the present case since the petitioner delayed asserting her right and did not approach the court within the limitation period prescribed in Section 125(3), the recovery of maintenance arrears cannot be made under the Code. However, the petitioner is not without a remedy, as she still has a civil remedy available. There can be no scintilla of doubt in accepting the binding precedent set by the decision in Sanjeev Kapoor (supra). However, the same is distinguishable on the facts 26.

As a result, I am of the considered opinion that the order under challenge in this petition does not suffer from any illegality, incorrectness, or error, much less any patent or jurisdictional error that would warrant interference. Accordingly, the order is affirmed. The present petition is dismissed. There shall be no order as to costs. 27.

However, it is clarified that this order shall not preclude the petitioner from recovering the arrears of maintenance by availing herself of the remedies available under any other enactment.

(Partha Sarathi Chatterjee, J)