Vipin Kumar Vs State of U.P. and Anr on 25 Feb 2022

Posted on August 6, 2023 by ShadesOfKnife

A single Judge of Allahabad High Court held as follows,

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.

Citations:

Other Sources:

https://indiankanoon.org/doc/139127943/

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990

Posted on August 6, 2023 by ShadesOfKnife

A single judge from Gauhati High Court held as follows,

From Paras 11, 12 and 13,

11. Under Chapter XXXII, Section 401 of the Code provides that. “Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine.” The proviso to section 431 is not relevant here. The order for payment of maintenance was an order under the code for payment of money, for the recovery of which no method had been expressly provided. Accordingly, under section 431 of the code, I think the maintenance; money could be recovered, as if it were fine.

12. Section 421 of the Code provides for recovery of fine and the procedure laid down for the purpose was by issue of warrant for attachment and sale of any movable property belonging to offender in this case the present petitioner (opposite party in the maintenance proceeding) or issue of 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: The provision to Section 421 clearly stipulates that “no such warrant shall be executed by the arrest or detention in prison of the offender.”

13. On consideration of the above provisions, there should be no doubt that for recovery of money as maintenance which has to be in accordance with the procedure for recovery of fine no warrant of arrest or detention of the petitioner could have been ordered. I, therefore think that the impugned order dated 1.9.89 was clearly erroneous and has to be set aside.

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990 (IndianKanoon Ver)

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990 (Casemine Ver)

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990 (LegalData Ver)

Citations: [1990 GAULR 2 328], [1991 CRLJ 1843], [1990 SCC ONLINE GAU 36], [1990 GAU LR 2 328], [1991 CRI LJ 1843]

Other Sources:

https://indiankanoon.org/doc/1507653/

https://www.casemine.com/judgement/in/56eaaa49607dba3c8ce3ef96

https://legaldata.in/court/read/2541018

Sachin Vs Sau. Sushma on 6 May, 2014

Posted on July 26, 2018 by ShadesOfKnife

Hon’ble High Court of Bombay in this judgment for recovering maintenance amount, has held that

From Para 5,

Therefore, it is abundantly clear that basically the learned Magistrate has to follow the procedure laid down in the Code of Criminal Procedure for recovery of maintenance either final or interim. Subsection (2) of Section 28 of the Protection of Women from Domestic Violence Act, 2005 can be pressed into service when there is no provision available for implementing a particular order passed under the Protection of Women from Domestic Violence Act, 2005. If the procedure is available in Code of Criminal Procedure, that is necessarily to be followed.

From Para 9,

As such the first option available to the Magistrate was to issue a warrant for levying fine. If whole of the amount was recovered by adopting the procedure under Section 421 of the Code of Criminal Procedure, the question of putting the defaulter in prison did not arise. In case amount was not recovered or part of it was recovered and part of it was not recovered, then the question would have arisen as to how much sentence should be imposed on the defaulter as per the provision laid down in the Code of Criminal Procedure. The stage of issuing warrant comes only after sentencing and not before that.

Sachin Vs Sau. Sushma on 6 May, 2014

Maintenance Judgments under Section 125 CrPC [Section 144 BNSS]

Posted on May 26, 2018 by ShadesOfKnife

Listed below are few judgments which deal with maintenance for knifes under Section 125 of CrPC [Section 144 BNSS]. Some are judgments of various courts where there are modifications done to the interim maintenance granted to Knife. The reason for this listing is to initiate Perjury proceedings against the Knife, as and when applicable. Some helpful judgements are here.

In some recent judgments of High Courts, it is being held that capable to earn is NOT equated to earning currently. Banking on this aspect only is not helpful and can be suicidal if this is the only argument victim-husband has.

Supreme Court

Smt. Yamunabai Anantrao Adhav A Vs Ranantrao Shivram Adhav And … on 27 January, 1988 (When the marriage is a complete nullity in the eye of law and wife is not entitled to the benefit of Section 125 of the CrPC)
Smt. Jasbir Kaur Sehgal Vs The District Judge Dehradun & Ors on 27 August, 1997 (Maintenance granted from Date of Application from Date of Order)
Shahada Khatoon and Ors Vs Amjad Ali and Ors on 7 Apr 1999 (Under 125(3) CrPC, 1-year time limit is for issuance of warrant for arrest)
Ruchi Agarwal Vs Amit Kumar Agrawal and Ors on 5 Nov 2004 [Once MCD done with no future claims, maintenance cannot be claimed later]
Chaturbhuj Vs Sita Bai on 27 November, 2007 [who is eligible to claim maintenance u/s 125 Cr.P.C. and under what conditions]
Bhushan Kumar Meen vs Mansi Meen @ Harpreet Kaur on 28 April, 2009 (Reduced from 10K to 5K)
Poongadi And Anr vs Thangavel on 27 September, 2013 (Total arrears to be paid from date of filing of MC application; arrest can happen for a month maximum for each violation of monthly maintenance)
Rajnesh Pal Naidu Vs Neha Naidu Joshi and Anr on 04 Nov 2020 [Guidelines issued to file Income, Asset and LIability affidavits before passing any Interim or Final Maintenance Orders ]
Aditi Sharma Vs Jitesh Sharma on 06 Nov 2023 [Reiterated/re-circulated Rajnesh Vs Neha to all High Courts]

Allahabad High Court

Kiran Dhar Vs Alok Berman on 14 May, 2014 (No Domestic relationship as First Wife alive)
Ismile @ Shama Vs State Of U.P. & Others on 22 September, 2016 (Knife able to maintain herself)
Vipin Kumar Vs State of U.P. and Anr on 25 Feb 2022 (relying on Hazi, held issue of arrest warrants in not correct law in case of non payment of maintenance)
Parul Tyagi Vs Gaurav Tyagi on 04 Aug 2023 [Guidelines passed in elaboration of Rajnesh Pal Naidu Vs Neha Naidu Joshi and Anr on 04 Nov 2020 and Aditi Sharma Vs Jitesh Sharma on 06 Nov 2023]
Dr. Virender Kumar Vs State of UP and Anr on 16 Oct 2024 [Once there is categorical allegation of adultery against the wife (attracting Section 125(4) Cr.P.C.), then the court concerned dealing with the matter under Section 125 Cr.P.C. has to decide the issue of adultery and even interim maintenance can be awarded only after recording a finding on that issue]

Andhra Pradesh High Court

Jangam Srinivasa Rao Vs Jaagam Rajeshwari and Anr on 13 Mar 1989 [Can claim maintenance only up to 12 months; Bad judgment as such restriction goes against execution proceedings]
Moodududla Srinivas Vs Smt .N.Usha Rani on 13 April, 2017
Borugadda Rama Devi and Ors Vs Borugadda Ravi Kumar and Anr on 26 Dec 2018 [No maintenance for Deserter wife]
Chinta Vamshi Vs State of Telangana and Anr on 16 Oct 2023 [Follow Rajnesh Vs Neha]

Trial Courts:

Byru Rajeswari Vs Byru Suresh Babu on 30 Apr 2018 (Knife failed to prove her allegations)
Gadesula Radhika Vs Gadesula Rajesh on 22 Jan 2019 (Knife voluntarily left the company of husband)
Palagani Samrajyam and Anr Vs Palagani Nagaraju on 30 Dec 2019 (Knife voluntarily left the company of husband)
K Sreekanth Naik Vs P Nalini and Anr on 25 Apr 2024 [Follow Rajnesh Vs Neha]

Bombay High Court

Sanjay Sudhakar Bhosale Vs Khristina on 8 April, 2008 (Cruelty not proved)
Sachin Vs Sau. Sushma on 6 May, 2014 (Follow Section 421 of the Cr.P.C. first before arrest)
Bhagwant Narnawre Vs Radhika Narnawre on 05 Apr 2019 (Wife is not a creditor)

Chhattisgarh High Court

Rishikesh Singh Vs Kiran Gautam on 05 Sep 2014 (MCD u/s 13B of HMA does not entitle wife maintenance u/s 125 CrPC)

Delhi High Court Judgments

Sabina Sahdev and Ors Vs Vidur Sahdev on 9 Jul 2018 [no pre-condition can be laid before receiving Appeal/Revision such as deposit maintenance amount]
Rangesh Srinivasan Vs Madhulika Bawa on 07 Jun 2023 [Stay on Interim Maintenance Order without any pre-condition; relied on Sabina Sahdev and Ors Vs Vidur Sahdev on 9 Jul 2018]
Zahir Obdullah and Anr Vs Omar Abdullah on 31 Aug 2023 [Interim enhanced to 1.5 lakhs from 75,000; despite the law providing, Court granted maintenance to major children!]
Sachin Kumar Daksh Vs Mamta Gola and Anr on 16 Feb 2024 [Allowed Revised Income affidavit as per Rajnesh Vs Neha judgement though held that earlier affidavit is not obliterated]

Trial Courts:

Neeraj Aggarwal Vs Veeka Aggarwal on September 19, 2007 (Educated and Working Wife (even after marriage) not entitled for maintenance)

Gauhathi High Court

Hazi Abdul Khaleque Vs Mustt. Samsun Nehar on 20 Aug 1990 (No arrest can be made for non-payment of maintenance u/s 125 Cr.P.C.)

Gujarat High Court

Hemlataben Maheshbhai Chauhan Vs State of Gujarat on 21 October, 2010 (denied interim maintenance to Knife as she is already getting maintenance under Section 125 of CrPC)
Varshaben Himantlal Vejani Vs State of Gujarat on 15 Jul 2016 (Spouses living separately with mutual consent so No maintenance can be allowed; Agreements against Public Policy are void)
Ashokbhai Devsingbhai Chauhan Vs Taraben Ashokbhai Chauhan on 11 Nov 2019 (Wife is not a creditor)

Jammu and Kashmir and Ladakh High Court

Showkat Aziz Zargar Vs Nabeel Showkat and Anr on 02 Sep 2022 (No maintenance to children once they attain majority, except one exception)

Jharkhand High Court

Ramdhani Sah Vs The State of Jharkhand on 22 June, 2016 (No arrest without following sec 421 Cr.P.C.)

Karnataka High Court

K.R.Arun vs M.Latha on 22 September, 2014 (Interim is reduced in S24 HMA, to Rs.2000/- from Rs.3000/-, until assets information is received in court)
Dr. Deepak K S Vs Dr. Sowmya Sharath on 23 March, 2018
Darshanik M M Vs Poornima A on 04 Dec 2023 [Not followed Guidelines passed in Rajnesh Pal Naidu Vs Neha Naidu Joshi and Anr on 04 Nov 2020 ]
Y.G. Rajesh Vs M Ramya and Anr on 08 Feb 2024 [Standard deduction not to be considered as salary]
K.L Rangaswamy Vs Sharadha. D on 20 Mar 2024 [Unclean hands; Liable for perjury; Interim Maintenance denial Order upheld]

Kerala High Court

Rajesh R. Nair Vs Meera Babu on 5 Mar 2013 (Spouses living separately with mutual consent; No maintenance can be allowed)
Rijas MT Vs Hafseena M on 15 Nov 2023 [No direct arrest warrant may be issued in case of failure to make maintenance payments]
Abhilash.M.V Vs Soumya Soman on 10 Nov 2023 [Husband not given chance to file objections]

Madhya Pradesh High Court

Mamta Jaiswal vs Rajesh Jaiswal on 24 March, 2000 (Educated and Working Wife (even after marriage) not entitled for maintenance)
Nirman Sagar Vs Monika Sagar Chaudhari and Anr on 01 Apr 2022 [No territorial jurisdiction]
Balram Dixit Vs Kiran Dixit and Anr on 17 Jan 2024 [Follow Rajnesh Vs Neha]
Shrikrishna Vs Sunita Bai on 02 May 2024 [Woman whose first marriage is subsisting, is not entitled to maintenance under section 125 CrPC]
Shikha Vs Avaneesh Mahodaya on 10 Sep 2024 [well educated lady who also has her own source of income]

Madras High Court

M.Chinna Karuppasamy Vs Kanimozhi on 16 Jul 2015 [No maintenance to adulterer wife]
P Amutha Vs Gunsekaran on 23 Dec 2022 (Wife is not a creditor)

Patna High Court

Laljee Yadav Vs The State Of Bihar on 16 September, 2011 (Importance of Section 421 Cr.P.C., arrest warrant in 125(3) Cr.P.C. cases)
Gitanjali Devi Vs State of Bihar and Anr on 02 Dec 2023 [Follow Rajnesh Vs Neha]

Telangana High Court

Ekula Sujatha Vs Ekula Rajender and Anr on 1 Jul 2024 [No maintenance for Deserter wife]

Uttarakhand High Court

Anshu Gupta Vs Adwait Anand on 09 Aug 2023 [Mother liable to pay maintenance to minor child]

Index of all Maintenance judgments is here.

Hemlataben Maheshbhai Chauhan Vs State of Gujarat on 21 October, 2010

Posted on May 20, 2018 by ShadesOfKnife

In this Gujarat High Court order, Judge denied interim maintenance to Knife in DVC as she was already getting maintenance under Section 125 of CrPC.

Hemlataben Maheshbhai Chauhan Vs State of Gujarat on 21 October, 2010

Citations:

Other sources:

https://indiankanoon.org/doc/802854/

Index of DV Judgments is here.

Ramdhani Sah Vs The State of Jharkhand on 22 June, 2016

Posted on May 10, 2018 by ShadesOfKnife

This judgment from Jharkhand High Court explains the notorious arrests under CrPC 125(3)

Ramdhani Sah vs The State Of Jharkhand on 22 June, 2016

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

Posted on May 10, 2018 by ShadesOfKnife

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

Shades of Knife

True Colors of a Vile Wife

Tag: CrPC 125(3) – No Automatic Arrest on Failure To Pay Maintenance

Vipin Kumar Vs State of U.P. and Anr on 25 Feb 2022

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990

Sachin Vs Sau. Sushma on 6 May, 2014

Maintenance Judgments under Section 125 CrPC [Section 144 BNSS]

Hemlataben Maheshbhai Chauhan Vs State of Gujarat on 21 October, 2010

Ramdhani Sah Vs The State of Jharkhand on 22 June, 2016

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