Dilshad Haji Risal v. State of U.P. : 2006 Cri.L.J 228 : AIR 2005 AII 403 : 2005 (53) ACrC 680 (1) DMC 461 : 2006 (1) HLR 717 : 2006 (1) 2006 (1) MarLJ 480 : 2006 (1) RCR (Cri) 179 : 2006 (2) LRC 97 (All)
Section 125(3)-Maintenance of wife and children-Husband arrested and sent to jail for non-payment of maintenance allowance-Recovery warrant for period spent in jail-Jurisdiction of Magistrate-Sending a person to jail not a mode of satisfaction of liability but only a mode of enforcement-It cannot be said that order of court to maintain his neglected wife and child would be absolved of his liability merely because he prefers to go to jail-A sentence of jail no substitute for recovery of amount of monthly allowance fallen in arrears, therefore, Magistrate undergone in Jail.
Held : The counsel for the applicant has also contended that the accused had already been sent to jail for the period for which the recovery warrant has been issued and the learned Magistrate was not competent to issue recovery warrant for that period. But this contention of the learned counsel for the applicant cannot be accepted. It is not disputed that the applicant has not yet made any payment towards maintenance allowance to his wife and the children for the period he was sent to fail and therefore that liability has not yet been discharged. In the case of Smt Kuldip Kaur v. Surinder Singh and Anr., , it has been held by the Hon'ble Apex Court that a distinction has to be drawn between a mode of enforcing recovery of maintenance allowance 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 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. 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 cannot be said 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 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 into support such a construction.
Therefore it is within the power of the learned Magistrate to direct for recovery warrant against the husband for the period for which he had already been confined in jail.