Order For Property Attachment And Conditional Warrant Of Arrest Can Be Simultaneously Issued In Maintenance Proceedings: P&H High Court

The Punjab & Haryana High Court has made it clear that for recovery of maintenance amount under Section 125 CrPC, attachment of the property and issuance of conditional warrants of arrest can be done simultaneously.

The corresponding Section for maintenance of wife, children and parents under the new criminal law is Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). 

In the present case, the Court rejected the contention that for the recovery of the maintenance amount after the order for attachment of property, the issuance of conditional warrants of arrest is illegal.

Justice Harpreet Singh Brar said, "a perusal of subsection (3) of Section 125, Cr.P.C. discloses that the Magistrate is empowered to issue warrant for recovery of the maintenance due in the manner provided for levying fines and may also sentence such person for the whole or any part of each month's allowance to imprisonment. The word “and” has to be given its plain and literal meaning and as such, has to be interpreted as a conjunctive term. Since the overarching intent of Chapter IX of Cr.P.C. is to maintain the neglected spouse and minor children and provide them with sufficient monthly allowance to enable them to lead a life of dignity, giving the word “and” its literal meaning would only better achieve the objective of recovering the amount of arrears and facilitate the payment of maintenance."

The Court further said that the ambit and scope of the powers as devolved by Section 125(3) Cr.P.C., are not to penalise or punish the transgressing party, who hasn't complied with the order, but rather, to drive him to a situation where he is put under an obligation to pay the monthly allowance and makes the actual payment of arrears. 

"The intent of the legislature in this regard is further made explicit by the provision which allows for sentencing the person, who fails without sufficient cause to comply with the order without sufficeint cause, for the whole or any part of each month's allowance for the maintenance, including interim maintenance remaining unpaid. The sentence may extend to imprisonment for a term up to one month or until payment is made, if sooner," it added.

The petition was filed by a man under Section 482, CrPC seeking setting aside of the impugned order passed in 2022, passed by the Family Court whereby conditional warrants of arrest were issued against the petitioner as well as all subsequent proceedings arising out of the same.

The petitioner was directed to pay Rs.75,000 per month as maintenance to his wife and three minor children under Section 125 CrPC. However, he failed to pay the same. Subsequently, upon non-payment of the maintenance amount, his wife and children preferred an execution application for the recovery of the amount of arrears. In the execution proceedings, the petitioner was proceeded ex-parte due to his non-appearance.

The warrants of attachment of the petitioner's properties were issued by the Court in 2021, which was followed by the issuance of conditional warrants of arrest in 2022.

Challenging the arrest warrant the counsel for the petitioner contended that, "the impugned order dated 12.10.2022 is liable to be set aside since the property of the petitioner has already been attached by the learned Court below. The recovery of maintenance amount has already been initiated by attaching the property of the petitioner therefore the issuance of conditional warrants of arrest is illegal and arbitrary."

After hearing the submissions, the Court noted that the object and purpose behind granting maintenance is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of failure of marriage. 

“At the same time, a just and careful balance must be struck to ensure that this provision does not degenerate into a weapon to punish the other spouse. The Courts are required to conduct the maintenance proceedings while being alive to the legislative intent behind the provision under Section 125 Cr.P.C in its true spirit, which is to provide speedy assistance and social justice to women, children and infirm parents,” it stated. 

Reliance was placed on Apex Court's decision in Smt. Kuldip Kaur vs. Surinder Singh and anr. [(1989) 1 SCC 405], to underscore that, "a distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a 'mode of enforcement'. It is not a 'mode of satisfaction' of the liability. The liability can be satisfied only by making actual payment of the arrears."

Justice Brar highlighted a close scrutiny of section 125 (3) Cr.P.C. reveals that in case of breach of the order directing payment of maintenance, the Magistrate may issue warrant for levying the amount due in the manner provided for levying fines as prescribed under Section 421 of Cr.P.C. and the Magistrate may also sentence such person for the whole or any part of each month allowance. 

Both of these are methods to impel the person against whom execution proceedings have been initiated to pay the maintenance amount which has fallen in arrears, he added.

Perusing the order passed by the family Court, the judge said that it is evident that despite attachment of the property of the petitioner, he failed to appear before the Court and make the actual payment of arrears. 

Court further observed that the petitioner cannot feign ignorance in the present case as he has challenged the order by which interim maintenance was granted to respondents No.2 to 5 (wife and children).

As a result, the conditional warrants of arrest were issued against the petitioner.

In light of the above, the Court opined that the argument of the counsel for the petitioner that issuance of conditional warrants of arrest is unwarranted after the property of the petitioner had already been attached, did not merit acceptance.

Consequently, the plea was dismissed.

Mr. I.S. Chawla, Advocate for for the petitioner

Mr. Subhash Godara, Addl. A.G., Punjab

Title: XXXX v. XXXX

Citation: 2024 LiveLaw (PH) 174