(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-
(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-
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,
Sachin Vs Sau. Sushma on 6 May, 2014As 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.
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
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