A good judgment from a single judge of High Court of Chhattisgarh Judgment explaining how important it is to follow the mandate u/s 421 Cr.P.C. while executing maintenance orders u/s 125(1) Cr.P.C.
From Paras 10, 11 and 12,
10.A careful perusal of the aforesaid provision would show that for recovery of the amount of maintenance, procedure under Section 421(1) has to be followed by either issuing warrant for levying the amount due by attachment and sale of movable property belonging to the offender or by issuing a warrant to the Collector of the district, for authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter. Section 421(3) provides that 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.
11.A conjoint reading of the provisions contained under Section 125(3) read with Section 421 of CrPC would show that by virtue of Section 125(3) of CrPC, the Magistrate has been empowered to recover the amount of arrears of maintenance by following the procedure prescribed for levy of fine under Section 421 of CrPC. Two modes are prescribed under Section 421 of CrPC for recovery of the arrears of maintenance due as if it were a fine levied. The Court can either issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the defaulter or 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 under Section 421(1)(a) and 421(1)(b) of CrPC. It is only after the Magistrate has exhausted the two modes prescribed under Section 421 of CrPC and still fails to recover the arrears of maintenance due that he can sentence the person who committed the default to imprisonment as enjoined under Section 125(3) of CrPC for the period prescribed in the above-stated provision and if in the execution of sentence of imprisonment so awarded, the defaulter does not appear to suffer, the sentence so awarded, the Court should at the first instance issue summons/notice for his appearance and if the defaulter seems to be avoiding the summons, the Court in the second instance should issue bailable warrant for his appearance to undergo sentence. The Courts, at first and second instance, shall refrain from issuing non-bailable warrant.
12.It is quite vivid that the provisions contained under Section 125(3) of CrPC itself provide that the Court may sentence such a person for whole or
any part of each month’s allowance after the execution of the warrant, as such, Section 125(3) CrPC speaks only of issue of a warrant for levying the amount in the manner provided for levying fines and does not speak of a warrant of arrest. The issue of a warrant for levy of the amount due by way of attachment and sale is a condition precedent to the sentencing of the defaulter to imprisonment. As such, without following the procedure prescribed under Section 421(1)(a) and 421(1)(b) of CrPC and without issuance of warrant of attachment and sale, no warrant can be issued and no order for imprisonment can be passed under Section 125(3) of CrPC.
From Para 17,
17. Reverting to the facts of the instant case in light of the aforesaid legal analysis, it is quite vivid that learned Family Court, finding that the arrears of maintenance is due from the petitioner, straightway issued warrant of arrest without following the procedure laid down in Section 421(1)(a) and 421(1)(b) of CrPC, whereas learned Magistrate ought to have followed the procedure laid down in Section 421 of CrPC for recovering the arrears of the amount of maintenance, and if after following the procedure as envisaged in Section 421 of CrPC by issuance of warrant of attachment of movable and immovable property of the defaulter and sale thereof; still arrears of amount of maintenance remains due, then order of imprisonment can be passed, as such, the order directing issuance of non-bailable warrant of arrest against the petitioner is contrary to Section 125(3) read with Sections 421(1)(a) and 421(1)(b) of the CrPC. Accordingly, the order dated 09/05/2019 (Annexure A/1) passed in MJC No. 43/2019 is hereby set aside and learned Family Court is directed to follow the procedure laid down by the Supreme Court in the matter of Rajnesh (supra) strictly for recovery of the amount of maintenance.
Citations: [LAWS(CHH)-2021-1-96]
Other Sources:
https://www.courtkutchehry.com/judgements/1070468/jagdamba-trivedi-vs-neha-trivedi/
https://www.casemine.com/judgement/in/6050d0e69fca195f67640edb
https://www.indianemployees.com/judgments/details/jagdamba-trivedi-versus-neha-trivedi
https://www.the-laws.com/encyclopedia/browse/case?caseId=021202701000&title=jagdamba-trivedi-vs-neha-trivedi#:~:text=He%20would%20also%20submit%20that%20if%20the,(Annexure%20A/2)%20deserve%20to%20be%20set%20aside.
Index of Maintenance Orders u/s 144 BNSS is here.
