# Dilip Kumar v. Family Court, Gorakhpur and others

- **Citation:** High Court of Judicature at Allahabad #39644
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dilip-kumar-v-family-court-gorakhpur-and-others-39644
- **Pages:** 3

## Text

1ALL] Dilip Kumar V. Family Court, Gorakhpur and others

67
17.

The
petition
is,
accordingly,
dismissed. No order as to costs.

Petition Dismissed.

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By the Court

1. Heard learned counsel for the applicant,
Sri Shankar Suan, learned counsel for the
opposite party, and also learned A.G.A. for
the Stated.

2. On the last date while admitting this
application, clear direction was given to the
State counsel that he shall also prepare
himself on the question whether any court
deciding an application for recovery of the
amount due under section 125 Cr.P.C. to the
wife from the delinquent husband can pass an
order of his confinement for a period of one
year competitively or any other consolidated
period.

3. A perusal of Section 125 (3) Cr.P.C.
very clearly indicates that no such order can
be passed by any court be it a Family Court or
a court of a Judicial Magistrate. The courts are
entitled to pass an order against any
delinquent husband, who has not made the
payment and allowed the wife to lead a
destitute life, in the absence of such payment,
to a confinement or imprisonment for a term
which may extend to one month or until
payment it sooner made. The earlier portion
of this sub-section clearly shows that this
confinement or imprisonment will be against
each month's default section 125 (3) Cr.P.C.
is quoted below:
"(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
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.

4. Provided that no warrant shall be issued
for the recovery of any amount due under this
section unless application be made to the
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
68
Court to levy such amount within a period of
one year from the date on which it became
due:

Provided further that if ;such person offers
to maintain his wife on condition of her living
with him, and she refuses to live with him,
such Magistrate may consider any grounds of
refusal stated by her, and may make an order
under this section notwithstanding such offer,
if he is satisfied that there is just ground for so
doing"

5. From these it is clearly available that
the person can be kept under confinement for
each month's default and the confinement can
be only for a period of one month. The
subsequent part 'until payment if sooner
made' further clarifies the situation to the
extent that such a husband can be confined to
a period of one month even if the default is of
more than a month and he can be allowed to
come out of jail if the payment is made earlier
at any point of time within this period. This
very clearly indicates that if the payment is
made within this period on any date his
confinement will come to an end. The purpose
behind this enactment of provision for
confinement is to put to an end to the
sufferings of the wife by compelling the
husband to pay the maintenance amount. The
court cannot keep him in confinement any
further beyond a period of one month by one
stroke of pen, in the present case an
application was moved by the wife for the
recovery of the arrears amount, which appears
to be for several months. The Family Judge
has passed a consolidated order for 12
months' confinement of the applicant, i.e. for
the total period of default. The applicant is the
husband, who has failed to make payment of
the maintenance amount allowed not only to
the wife but also to his children. He has failed
to discharge this obligation. The court is
vested with this extensive power with this
extensive power with this interest in mind, i.e.
compelling the husband to discharge his
obligation imposed upon him by an order of a
competent court.

6. In view of the discussions made above,
the order of the learned Family Judge is
wholly unsustainable. I am fortified in my
view by a latest decision of the Apex Court
reported in (1999) 5 S.C.C. 672 (Shahada
Khatoon and others v. Amjad Ali and others).
The Apex Court has gone to the extent of
saying that the confinement can extend to
only one month and if even after the expiry of
one month the delinquent husband does not
make the payment of arrears then the wife can
approach the Magistrate again for a similar
relief but the confinement of the husband
must be only of on month. In the own words
of the Apex Court 'By no stretch of
imagination can the Magistrate be permitted
to impose sentence for more than one month'.
Thus, this latest decision of the Apex Court
further lays down a fetter in the exercise of
this power by the Judicial Magistrate or the
Family Judge to the extent that only a
confinement for a period of one month can be
passed on an application whether the amount
claimed by the wife as arrears is for more than
one month or for only a month. In one stroke
no composite confinement can be directed by
the court. It very clearly flows from the above
decision. This power can be exercised only
after a warrant for recovery of the unpaid
maintenance allowance is issued by the court.
This warrant is to be executed like any
warrant of recovery of fines. This fine can be
recovered like any land revenue arrears.
Unless that exercise is first adhered to, this
power of confinement to jail for his failure
can not be resorted to by any court.

7. Accordingly, this 482 application is
allowed and the order passed by the Family
Judge
on24.4.1999
is
hereby
quashed.
However, it will be open for the Family Judge
to pass a fresh, proper ;and judicial order in
accordance with the provisions of law and as
decided by the Apex Court in the aforesaid
1ALL] Pushpendra Singh V. Regional Manager, U.P.S.R.T.C., Aligarh and another

69
case in case if any application is moved by
the wife.
Application Allowed.

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By the Court
1. Appeal on hand stems from the
judgment and order dated 4.11.99 passed in
Writ Petition No.46695 of 1999 thereby
dismissing the writ petition in limine. The
facts constitutive of the grievances of the
appellant is that the appellant's father who
was serving in the U.P. State Road Transport
Corporation, died in harness on 21.8.1984. At
the time of the death of his father, the
appellant was minor and he attained majority
on 12.12.98. He applied for compassionate
appointment on 23.2.99 permissible under the
provisions of the U.P. (Recruitment of
Government Servants) Dying in Harness
Rules, 1974. The claim of the appellant for
compassionate employment under the Dying
in Harness Rules met the fate of rejection at
the end of Regional Manager U.P. State Road
Transport Corporation, Aligarh vide order
dated 30.6.1999 premised on the ground that
the application was not moved within five
years of the death of the employee.

2. The learned Single Judge dismissed the
writ petition. The quintessence of the order
dismissing the writ petition is that after such a
long time of death of the deceased, the right
of the claimant stood extinguished.

3. We have heard Sri Dhan Prakash,
learned counsel for the appellant and Sri
Samir Sharma, counsel appearing for the
respondent no. 2.

4. The rule of compassionate is an
exception to the general mode of appointment
strictly on the basis of open invitation of
applications on merits. It is born of pure
humanitarian consideration and interest of
justice, reckoning into consideration the fact
that unless some source of sustenance is
provided the family would not be able to fend
for itself on its own. 'The whole object of
granting compassionate employment is thus to
enable the family to tide over the sudden
crisis'- Umesh Kumar Nagpal v. State of
Haryana and Others1. In the said case, the
Supreme Court has held the view that that
mere death of an employee in harness does

1 (1994) 4 SCC 138