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Shades of Knife

True Colors of a Vile Wife

Tag: Follow CrPC 421 For Maintenance Recovery

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
Posted in High Court of Bombay Judgment or Order or Notification | Tagged CrPC 125(3) - No Automatic Arrest on Failure To Pay Maintenance CrPC 421 - Warrant for levy of fine CrPC 482 - Quash Follow CrPC 421 For Maintenance Recovery Landmark Case Legal Procedure Explained - Interpretation of Statutes No Automatic Arrest Protection of Women from Domestic Violence Act 2005 PWDV Act Sec 28(2) - No NBW Allowed Sachin Vs Sau. Sushma | Leave a comment

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
Posted in High Court of Jharkhand Judgment or Order or Notification | Tagged CrPC 125(3) - No Automatic Arrest on Failure To Pay Maintenance Failure To Pay Maintenance Follow CrPC 421 For Maintenance Recovery No Automatic Arrest Ramdhani Sah Vs The State of Jharkhand | Leave a comment

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
Posted in High Court of Patna Judgment or Order or Notification | Tagged CrPC 125(3) - No Automatic Arrest on Failure To Pay Maintenance CrPC 421 - Warrant for levy of fine Failure To Pay Maintenance Follow CrPC 421 For Maintenance Recovery Landmark Case Legal Procedure Explained - Interpretation of Statutes Maintenance No Automatic Arrest Order Quashed | Leave a comment

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