In this case Family court Bhagalpur has passed an order of detention against the petitioner due to his failure to pay maintenance, awarded under sec.125 CrPC.
In this case Family court Bhagalpur has passed an order of detention against the petitioner due to his failure to pay maintenance, awarded under sec.125 CrPC.
It is indeed a matter of great regret that in spite of the decision of the Division Bench of this Court, in the case of Lajee Yadav Vs. The State Of Bihar, since reported in 2011(4)PLJR, 248, the learned court has not followed the procedure as laid down in law and violated the petitioner’s Fundamental Rights.
This court in the judgement of laljee yadav had elaborately dealt with entire procedure inasmuch as this court held that no person can be arrested by orders of the court. In terms of sec.125 CrPC it could only be recovered in the process as prescribed for recovery of fine, which would ultimately be sent to the collector for recovery of arrears in a proceedings under the Bihar and Orissa Public Demands Recover Act,1914.
In Lajee Yadav Vs. The State Of Bihar, since reported in 2011(4)PLJR,248 the Hon’ble Court Held :
the substantive provision of sub-section (3) of Section 125 of the Code, relevant part whereof is quoted hereunder:
“(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 for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:”
(Emphasis supplied) As we see it, a plain reading of sub section (3) of Section 125 of the Code has various components which are enumerated hereunder:
(i) without sufficient cause fails to pay maintenance as ordered.
(ii) for every breach (monthly), Magistrate is to issue a warrant for recovery of amount in the manner provided for levying fines (not distress warrants against the person) .
(iii) for each month’s allowance, remaining unpaid after the execution of the warrant, sentence the person to imprisonment.
(iv) for a term which may extend to one month.
From the above analysis of Section 125 (3) of the Code, it would be abundantly clear that there is no scope for issuance of warrant and/or distress warrant for the arrest of the delinquent party.
The expression warrant used in the section is warrant for levying the amount due in the manner provided for levying fine which is always misunderstood as warrant for arrest, which it is not
This is clear when we take note of the first proviso to Section 125 (3), as quoted above.
From the above statutory provision, we find it difficult to sustain the plea that no sooner there is a default in payment of maintenance, distress warrant for arrest has to be issued. The expression warrant used in sub-section (3), as quoted above, is for the purposes of recovery of the amount due which has to be done in the manner provided for levying fines.
The Code itself provides by Section 421 for warrant for levy of fine, the relevant part of Section 421 alongwith the relevant proviso is quoted hereunder:
421. Warrant for levy of fine : 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 no such warrant shall be executed by the arrest or detention in prison of the offender. (Emphasis supplied) We must have notice one specific position. A reference to Section 421 and the proviso would show that it clearly prohibits a person to be imprisoned in execution of warrant levying fine which would simply for recovery of the maintenance and, thus, there is no scope for issuance of any distress warrant for detaining a defaulter husband. What the Magistrate or now the Principal Judge is to do is to sentence him for failure to comply with the order of maintenance. For the purposes of sentencing, the Code has provision in terms of Sections 29 and 30 thereof but the question remains that can there be a sentence straightway upon default being shown. In our view, no. The reason is that if we once again refer to Section 125 (3) of the Code, it would show that the whole provision is conditioned upon “any person so ordered fails without sufficient cause”. Therefore, before proceeding even to issue warrant for recovering the amount, it is incumbent upon the Court to come to a finding that there is no sufficient cause for failure to obey the order. This finding can only be arrived at after a notice is issued to the party who is in default and he is heard in the matter. Once that is done then warrant for recovery of the amount can be issued in the manner as provided under Section 421 of the Code for recovery of fines and for recovery of the balance remaining unpaid without reasonable cause, he may be sentenced to imprisonment which may extend to one month only for each months default.
Now, we may refer to a Division Bench judgment of this Court directly on the issue delivered over a decade back, notice of which was not even taken by the learned Principal Judge, Family Court which is directly applicable to this case being Ashok Prasad -Versus- State of Bihar & Another since reported in 2000 (1) PLJR 578. The facts are also similar and the Division Bench held clearly that
there are two conditions necessary before sentencing a person to imprisonment. It must first satisfy that the person, without sufficient cause, is not paying maintenance. Secondly, it must issue warrant for levying the amount due in the manner provided for levying fine and after its execution to ascertain the amount which remains unpaid. The sentencing to imprisonment can take place after that but without complying with the aforesaid two conditions, his detention in person would be illegal.
Unfortunately, in total disregard to the binding precedent, the learned Principal Judge, Family Court proceeded. The result is that the petitioner is being detained in custody ad infinitum which is against the statutory provisions
We, therefore, hold that the detention of the petitioner cannot be justified and is contrary to the scheme as provided under Section 125 (3) of the Code. We have no option accordingly but to direct the immediate release of the petitioner, while quashing the order committing the petitioner to custody and subsequent orders of remand. The writ application is allowed.
Thus the detention order set aside.
