On a plain reading of sub-section (3) of Section 125 Cr.P.C., it is
apparently clear that in the event of any failure on the part of any person to comply with an order to pay maintenance allowance, without sufficient cause, the Magistrate is empowered to issue warrant for levying the amount due in manner provided for levying of fines for every breach of the order. Section 421Cr.P.C. prescribes the manner for levying fine and clause (a) of sub-Section (1) of Section 421 provides for issuance of warrant for levy of the amount by attachment and sale of any movable
property belonging to the offender. In other words, in the event of any failure without sufficient cause to comply with the order for maintenance allowance, the Magistrate is empowered to issue distress warrant for the purpose of realization of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may seized in execution of such warrant. Sub-section (3) of Section 125 Cr.P.C. makes it further clear that the jurisdiction of the Magistrate for sentencing such
person to imprisonment would arise only after the maintenance allowance, in whole or in part, remains unpaid after the maintenance allowance, in warrant. It is only after the sentence of imprisonment is awarded by the Magistrate under sub-section (3) of Section 125 that the occasion may arise for issuance of warrant of arrest for bringing the person concerned to Court for his committal to prison to serve out the sentence.
It is further apparent that the Magistrate has no jurisdiction to issue warrant of arrest straight way against the person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the court without first levying the amount due as fine and without making any attempt for realization that fine in one or both the modes for recovery of that fine as provided for in clauses (a) or (b) of sub-Section (1) of Section 421 Cr.P.C. say by issuance
of distress warrant for attachment and sale of movable property belonging to the defaulter as contemplated under Section 421 (1) (a) and without first sentencing the defaulter to imprisonment after the execution of the distress warrant.
In view of aforesaid, this Court finds that the Principal Judge, Family Court, Kasganj has not followed the establish procedure for issuance of recovery warrant in default of payment of arrears maintenance allowance within the time allowed by him in the execution case concerned. The order directing issuance of warrant of arrest is patently illegal and not warranted by law. Order dated 30.11.2021 is hereby set aside.
ALLAHABAD HIGH COURT
Case :- APPLICATION U/S 482 No. - 4483 of 2022
Applicant :- Vipin Kumar
Opposite Party :- State of U.P. and Another
Coram: Hon'ble Ajit Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The applicant by means of this application under Section 482 Cr.P.C. has
invoked the inherent jurisdiction of this Court with a prayer to quash the
order dated 30.11.2021 passed by the Principal Judge, Family Court,
Kasganj in Case No. 118 of 2020 (Smt. Kaushalya @ Kaushal vs. Vipin
Kumar), under Section 128 Cr.P.C., P.S. Kasganj, district-Kasganj. A
further prayer is that a direction be issued to the court below to release the
applicant from jail forthwith.
It is submitted by learned counsel for the applicant that marriage between
applicant and opposite party no. 2 was solemnized on 8th December, 2010.
Out of the aforesaid wedlock, a baby girl was born. However, after some
time, the relationship between the husband and wife became strained and
incompatible. Thereafter the opposite party no. 2 has initiated several
litigations against the applicant. In connection with the same, she along
with her daughter filed an application under Section 125 Cr.P.C. before the
Family Court, Kasganj, which was allowed by the Principal Judge, Family
Court, Kasganj vide judgment and order dated 30.11.2021. It is also
submitted that the applicant is a handicapped person, certificate whereof
has been filed as Annexure-2 to the affidavit accompanying the
application. Due to the reason he failed to comply with the order passed
under Section 125(3) Cr.P.C. and the learned court below has issued the
recovery warrant dated 8.10.2021, directing that the applicant shall pay a
sum of Rs. 1,65,000/- (Rs. one lac sixty five thousand) to the opposite
party no. 2 as maintenance w.e.f. 30.7.2017 to 19.1.2020 and in pursuance
of recovery warrant the applicant was sent to jail. On 30.11.2021 the
applicant was summoned by the court below and he was produced by the
jail authority before the court blow and the court below had passed the
order, while detaining the applicant in jail for a period of one month and
directed that during detention, the applicant shall pay a sum of Rs. 5,000/-
per month to opposite party no. 2, fixing next date, i.e. 2012.2021,
directing the Jail Superintendent to produce the applicant again on the next
date fixed.
It is also submitted by learned counsel for the applicant that provisions of
Section 125(3) Cr.P.C. specifically provides for issuance of a warrant for
lavying the amount issued in the manner provided for lavying of fines.
The learned court below has passed the order dated 30.11.2021 for
detention of applicant in jail for one month without complying the
provision contained in Section 125(3) Cr.P.C. and without imposing any
fine, hence the impugned order dated 30.11.2021 is liable to be quashed.
In support of his submissions, learned counsel for the applicant has placed
reliance upon the following judgments of Gauhati High Court, Calcutta
High Court and Punjab & Haryana High Court:
1. Hazi Abdul Khaleque vs. Mustt. Samsun Nehar, 1991 CriLJ, 1843;
2. Dipankar Banerjee vs. Tanuja Banerjee reported in 1998 CriLJ 907; and
3. Om Prakash @ Parkash vs. Vidya Devi reported in 1992 CrlLJ 658.
Per contra, learned A.G.A. for the State has opposed the submissions made
by the learned counsel for the applicant by contending that that the
applicant is a defaulter and has not paid any amount as awarded by the
Family Court under order dated 30.7.2017 to opposite party no. as interim
allowance. Therefore, the Family Court has rightly issued recovery
warrant against the applicant for realization of the amount so due and there
is no error in the order impugned.
I have considered the submissions made by the learned counsel for the
parties and have gone through the record.
Before coming to the merits of the present case, it would be worthwhile to
reproduce Sections 125 (3) and 421 Cr.P.C., which read as follows:
"125. Order for maintenance of wives, children and parents.
......
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 allowances 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.
.........."
"421. Warrant for levy of fine.
(1) When an offender has been sentenced to pay a fine, the Court passing
the sentence may take action for the recovery of the fine in either or both
of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of
any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to
realise the amount as arrears of land revenue from the movable or
immovable property, or both, of the defaulter: Provided that, if the
sentence directs that in default of payment of the fine, the offender shall be
imprisoned, and if such offender has undergone the whole of such
imprisonment in default, no Court shall issue such warrant unless, for
special reasons to be recorded in writing, it considers it necessary so to do,
or unless it has made an order for the payment of expenses or
compensation out of the fine under section 357.
The State Government may make rules regulating the manner In which
warrants under clause (a) of sub- section (1) are to be executed, and for the
summary determination of any claims made by any person other than the
offender in respect of any property attached in execution of such warrant.
Where the Court issues a warrant to the Collector under clause (b) of subsection
(1), the Collector shall realise the amount in accordance with the
law relating to recovery of arrears of land revenue, as if such warrant were
a certificate issued under such law: Provided that no such warrant shall be
executed by the arrest or detention in prison of the offender."
On a plain reading of sub-section (3) of Section 125 Cr.P.C., it is
apparently clear that in the event of any failure on the part of any person to
comply with an order to pay maintenance allowance, without sufficient
cause, the Magistrate is empowered to issue warrant for levying the
amount due in manner provided for levying of fines for every breach of
the order. Section 421Cr.P.C. prescribes the manner for levying fine and
clause (a) of sub-Section (1) of Section 421 provides for issuance of
warrant for levy of the amount by attachment and sale of any movable
property belonging to the offender. In other words, in the event of any
failure without sufficient cause to comply with the order for maintenance
allowance, the Magistrate is empowered to issue distress warrant for the
purpose of realization of the amount, in respect of which default has been
made, by attachment and sale of any movable property, that may seized in
execution of such warrant. Sub-section (3) of Section 125 Cr.P.C. makes it
further clear that the jurisdiction of the Magistrate for sentencing such
person to imprisonment would arise only after the maintenance allowance,
in whole or in part, remains unpaid after the maintenance allowance, in
warrant. It is only after the sentence of imprisonment is awarded by the
Magistrate under sub-section (3) of Section 125 that the occasion may
arise for issuance of warrant of arrest for bringing the person concerned to
Court for his committal to prison to serve out the sentence.
It is further apparent that the Magistrate has no jurisdiction to issue
warrant of arrest straight way against the person liable for payment of
maintenance allowance in the event of non-payment of maintenance
allowance within the time fixed by the court without first levying the
amount due as fine and without making any attempt for reaslization that
fine in one or both the modes for recovery of that fine as provided for in
clauses (a) or (b) of sub-Section (1) of Section 421 Cr.P.C. say by issuance
of distress warrant for attachment and sale of movable property belonging
to the defaulter as contemplated under Section 421 (1) (a) and without first
sentencing the defaulter to imprisonment after the execution of the distress
warrant.
In view of aforesaid, this Court finds that the Principal Judge, Family
Court, Kasganj has not followed the establish procedure for issuance of
recovery warrant in default of payment of arrears maintenance allowance
within the time allowed by him in the execution case concerned. The order
directing issuance of warrant of arrest is patently illegal and not warranted
by law. Order dated 30.11.2021 is hereby set aside. Let the Principal Judge
pass a fresh order in the aforesaid execution cases filed by opposite party
no.2 in light of the observations made herein above.
Subject to the observations made above, the present petition is allowed.
Order Date :- 25.2.2022
Faridul
Digitally signed by FAREEDUL
HASAN
Date: 2022.03.23 13:30:27 IST
Reason:
Location: High Court of Judicature at
Allahabad
Print Page
No comments:
Post a Comment