The proceeding for enforcement of the order under Section 128, therefore, cannot be assailed on the ground that the same would be barred by limitation as provided under the proviso to Section 125(3) of the Code. It may, therefore, be deduced that the scope of Section 125(3) and 128 of the Code being different and the first proviso to Section 125(3) creating an interdict only on issuance of warrant for recovery under Section 125(3), the said period of limitation of one year cannot be held to create a fetter on the right to claim enforcement under Section 128.
The Allahabad High Court was hearing an application Mohammad Usman vs State of UP in Application u/s 482 No. 8718 of 2021 under Section 125 of the Code which was was allowed by means of an ex parte order with a direction to make payment of a monthly allowance of Rs 1,000 for life to the OP 2 and a monthly allowance of Rs. 500 each to Ops 3,4,5 and 6 till they attain majority. Proceedings for enforcement of the aforesaid order of maintenance under Section 128 of the code were initiated pursuant to an application registered as execution case wherein a prayer was made for recovery of the amount. Pursuant to a recovery warrant issued in the execution proceedings, the applicant appeared before the court and filed an application expressing his willingness to deposit fifty per cent of the amount due and order was passed directing that 50% of the amount due be deposited and the remaining amount be deposited in installments. Subsequently, order in respect of recovery of balance amount was also passed.
One of the main issues that came up for the court’s consideration was whether the limitation prescribed under the proviso to Section 125(3) doesn’t create any bar on claiming arrears of maintenance or it limit the entitlement.
Purpose of section 125 CrPC: Section 125 of the Code is in the nature of a benevolent provision having a social purpose with the primary object to ensure social justice to the wife, child and parents, who are unable to support themselves so as to prevent destitution and vagrancy.
Sentencing on failing to comply with maintenance order: In terms of Section 125(3) of the Code, if any person fails without sufficient cause to comply with the order made under Section 125(1) for maintenance, the Magistrate may, for every breach of the order, issue a warrant for levying the amount due 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 execution of the warrant to imprisonment for a term which may extend to one month or until payment, if sooner made.
Difference between issuance of warrant under Section 125 (3) and Enforcement: The provisions contained under sub-section (3) of Section 125, as aforesaid, would indicate that the issuance of warrant or the imprisonment of the person concerned, is only a mode of recovery of the amount due in terms of the order made under sub-section (1) to Section 125 for payment of monthly allowance. The mode of recovery by issuance of a warrant or by imprisonment of the person as per terms of Section 125(3), has been held distinct from actual satisfaction of the liability.
Kuldip Kaur v. Surinder Singh (1989) 1 SCC 405, considered the distinction between the mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which had fallen in arrears on the other, in the context of Sections 123(3) and 128 of the code.
“It was held sentencing a person to jail as per terms of sections 125(3) of the code is a ‘mode of enforcement’ and not ‘mode of satisfaction’ of the liability, which can be satisfied only by making actual payment of the arrears.”
Poongodi v. Thangavel, (2013) 10 SCC 618, it was held that the first proviso to Section 125(3) does not create any bar or fetter on claiming arrears of maintenance and it neither extinguishes not limits entitlement to arrears of maintenance.
“The proceedings for maintenance under section 125 of the code are of a summary nature and the purpose and object of the same is to provide a simple and speedy remedy, and to ensure that the deserted wife, children and parents are not left destitute and without any means for subsistence.
The provisions contained under Section 125(3), as aforesaid, would indicate that the issuance of warrant or the imprisonment of the person concerned, is only a mode of recovery of the amount due in terms of the order made under Sub- section (1) to section 125 for payment of monthly allowance.
The mode of recovery by issuance of a warrant or by imprisonment of the person as per terms of Section 125(3), has been held distinct from actual satisfaction of the liability.”
Limitation of one year and section 128: “Section 125(3) of the code would have to be held to be confined to the section which precedes it.” Section 128 of the Code provides for enforcement of the order of maintenance against the person against whom the order of maintenance has been made. The enforcement of the order of maintenance under Section 128 can only be made upon the liability being satisfied by making actual payment of the amount of maintenance, which is due. The entitlement to claim enforcement of the order of maintenance under Section 128 by seeking discharge of the liability as per terms of the order of maintenance granted under Section 125, therefore cannot be held to be extinguished in terms of the one year limitation prescribed under the first proviso to Section 125(3).
Plain reading of proviso: Even otherwise, a plain reading of the first proviso to Section 125(3) would show that the limitation of making an application within a period of one year from the date on which it becomes due would only be applicable in case of issuance of a warrant for recovery of any amount due under the section, and it does not contain any restriction on a claim to be made for enforcing the order of maintenance for which the provision is made under Section 128.
Can the limitation under 125 (3) extended to Section 128: While considering the scope of the proviso to sub-section (3) of Section 125 of the Code and as to whether the limitation of one year under the proviso can be extended to enforcement of the order of maintenance under Section 128 of the Code, it would be relevant to bear in mind that the language of a proviso, even if in general, is normally to be construed in relation to the subject matter covered by the section to which the proviso is appended. Dwarka prasad v. Dwarka das saraf (1976) 1 SCC 128, the bench referred to the decision with regard to the scope of a proviso as an internal aide to the interpretation of statutes. It was held that a proviso must be limited to the subject matter of the enacting clause and must be read and considered in relation to the principal matter to which it is a proviso.
Hence, the limitation of one year provided in terms thereof would have to be read in relation to issuance of a warrant of recovery of an amount due in terms of an order of maintenance passed under sub-section (1) of Section 125. The aforesaid limitation of one year under the proviso to Section 125 (3) cannot be held to travel beyond or stretch to an extent so as to being within it s ambit the powers relating to enforcement of an order of maintenance under Section 128 of the code.
Therefore, concluding the decision, court held that the proceeding for the enforcement of the order under Section 128 cannot be assailed on the ground that the same would be barred by limitation as provided under the proviso to Section 125(3) of the code. In view of the above discussion, present application failed and was dismissed.
Sentencing a person to jail as a ”mode of enforcing‘ has been held to be not a ”mode of satisfaction’ of the liability, which can be satisfied only by making actual payment of the arrears. The very purpose of imprisonment is to require a person who refuses to comply with the order without sufficient cause to obey the order and to make payment of the monthly allowance. The purpose of imprisonment would not be to wipe out the liability which he has refused to discharge; the imprisonment of the person concerned being in no way a substitute for the recovery of the amount of monthly allowance which has fallen in arrears.
Sentencing to jail can only be seen as a means of recovering the amount of arrears and not a mode of discharging liability. The liability for payment of monthly allowance can be discharged only upon the amount being recovered and not by imprisonment alone of the person liable to pay monthly allowance which can only be held to be a mode or method of recovery and not a substitute for discharge of the liability.
Section 125(3) of the Code circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. The first proviso to Section 125(3) prescribing limitation of one year to seek recovery of arrears of maintenance, is only in respect of the procedure for recovery of maintenance as per terms of the sub-section, by construing the same to be a levy of fine. The first proviso to Section 125(3) of the Code cannot be construed to be a fetter on the entitlement of the claimant to receive arrears of maintenance beyond a period of one year preceding the date of filing of the application under Section 125(3) nor can it be held to extinguish or limit the entitlement to claim maintenance granted by the court under Section 125.
