This is a wonderful judgment explaining the imprisonment of accused who fails to make the maintenance payments to Knife under Sec 125(3) of CrPC.

Noticing the peculiar situation where virtually the petitioner has been made to serve life sentence and the insensitivity of the Judge in the matter, we called for the lower Court records to examine for ourselves the facts because if what is being said by the Principal Judge, Family Court is to be accepted then the petitioner would virtually be serving a life sentence with no remission possible.

 

What is more scandalous is, as will be shown, petitioner has been kept in prison mechanically and that too for months even without any order of remand by the learned Principal Judge, Family Court.

 

The Code itself provides by Section 421 for warrant for levy of fine….

… 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.

 

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.

 

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.

 

Again, this is significant inasmuch as the maintenance being a monthly payment, for each month’s default, defaulter can be sentenced for a month’s imprisonment.

 

As seen above, the maintenance is to be fixed on monthly basis. The sentence has, accordingly, been limited to a month maximum for each breach.

 

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.

 

Laljee Yadav vs The State Of Bihar on 16 September, 2011