The Allahabad High Court in its order dated February 25, 2022 observed that if a person is unable to comply with a maintenance payment, the correct/appropriate course for the courts is to first issue a warrant for the levy of fine as provided u/s 421 of CrPC for the purpose of realisation of the amount, and not arrest the person directly.
The bench of Justice Ajit Singh held,
In cases of non-payment of maintenance allowance, the Magistrate has no jurisdiction to issue a warrant of arrest straightway against the person liable, without first levying the amount due as a fine as provided under Section 421 of CrPC.
Parties were married in December 2010 and a girl child was born out of the wedlock.
However, after some time, the relationship between the husband and wife became strained and incompatible. Thereafter the wife has initiated several litigations against the applicant husband. 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.
Handicapped Husband Sent To Jail For Non-Payment Of Maintenance
The applicant husband is a handicapped person who has failed to comply with the order and hence, the Court issued a recovery warrant directing him to pay a sum of Rs 1,65,000 to the wife as maintenance w.e.f. July 30, 2017 to January 19, 2020, and in pursuance of the recovery warrant, the applicant was sent to jail vide order dated November 30, 2021.
Submission by Husband
The learned counsel for the husband argued that the provisions of Section 125(3) Cr.P.C. specifically provides for the issuance of a warrant for levying the amount issued in the manner provided for levying of fines (the procedure for the same is provided under Section 421 of CrPC).
It was further submitted that the Court below passed an order on November 30, 2021, for the detention of the applicant in jail for one month without complying with the provision contained in Section 125(3) Cr.P.C. and without imposing any fine, hence, it was contended that the impugned order was liable to be quashed.
Argument by Wife
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 realisation of the amount so due and there is no error in the order impugned.
Allahabad High Court
The Court observed that as per sub-section (3) of Section 125 Cr.P.C., 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 a warrant for levying the amount due in manner provided for levying of fines for every breach of the order.
The High Court further noted that Section 421 Cr.P.C. prescribes the manner for levying fines and clause (a) of sub-Section (1) of Section 421 provides for the issuance of a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender.
In other words, the Court clarified, in the event of any failure without sufficient cause to comply with the order for maintenance allowance, the Magistrate is empowered to issue a distress warrant for the purpose of realisation of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may be seized in execution of such warrant (as per the provisions of Section 421 of CrPC)The Allahabad High Court has specifically remarked,
The Magistrate has no jurisdiction to issue a warrant of arrest straightway 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 realisation 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.
The High Court thus concluded that the Principal Judge, Family Court, Kasganj had not followed the established 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. therefore, the order was set aside.
Section 125 CrPC – 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.
Section 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.
READ ORDER | Non-Payment Of Maintenance | Magistrate Has No Jurisdiction To Issue Arrest Warrant W/o First Levying Fine: Allahabad High Court— Men’s Day Out (@MensDayOutIndia) April 22, 2022
▪️Applicant husband is a handicapped person who failed to comply with the order#GenderBiasedLaws #SpeakUpMenhttps://t.co/Hok6kvj97I
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