Section125(3) CrPC Mode Of Enforcement Of Right To Maintenance; Its Invocation Against Defaulter Cannot Be Faulted: Allahabad High Court

A Single Bench of Justice Dr. Yogendra Kumar Srivastava has held,

"The liability to pay maintenance under Section 125 Cr.P.C. being in the nature of continuing liability; accordingly, in case of a default in complying with an order passed under Section 125(1) for payment of maintenance or for any breach thereof, the invocation of the exercise of power under Section 125(3) by the Magistrate, cannot be faulted with."

Section 125(3) empowers a Magistrate to issue a warrant or sentence a person who, without sufficient cause, fails to comply with the order for payment of maintenance.

The Judge observed that the provision is essential to enforce an order for payment of maintenance to the woman, child and infirm parents so as to prevent destitution and vagrancy, compelling those who can support those who are unable to support themselves but have a moral claim for support.

The order stated,

"The procedure for enforcement of an order passed under Section 125 Cr.P.C. with regard to maintenance, is provided for under sub-section (3) of Section 125. A perusal of the provisions contained under Section 125(3) indicates that if any person ordered to pay monthly allowance for maintenance under Section 125(1) fails without sufficient cause to comply with the order, the Magistrate is empowered for every breach of the order to issue a warrant for levying the amount due in the manner provided for levying fines, and is further empowered to sentence such person, for the whole, or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.

The proceedings for maintenance under Section 125 Cr.P.C. are of a summary nature and the purpose and object of the same is to provide immediate relief to the applicant. The object of the provision being to prevent vagrancy and destitution, the hardship faced by the wife in having to wait for several years before being granted maintenance."

Background

In the instant case, the Petitioner had impugned an order of the Family Court passed under Section 125(3) of CrPC.

The Court observed that the impugned order was passed in exercise of powers under Section 125(3) CrPC on account of default made by the Petitioner in complying with the earlier order of the Family Court directing payment of maintenance to his wife.

It was also informed that the Petitioner had already preferred a recall application before the Family Court.

Accordingly, the Bench held,

"The liability to pay maintenance under Section 125 Cr.P.C. being in the nature of continuing liability; accordingly, in case of a default in complying with an order passed under Section 125(1) for payment of maintenance or for any breach thereof, the invocation of the exercise of power under Section 125(3) by the Magistrate, cannot be faulted with."

Reliance was placed on Poongadi & Ors. v. Thangavel, (2013) 10 SCC 618, where it was held that the proviso to Section 125(3) signifies that it is a mode of enforcement and does not create any bar or affects rights to claim arrears of maintenance. It lays down the procedure for recovery of maintenance by construing maintenance to be a levy of fine.

In the facts of the case, the Bench added,

"In the event the applicant has made any payment in respect of arrears of maintenance, as claimed by him, and in regard to which, he has filed a recall application (paper no. 17 kha), it is always open to him to pursue the aforesaid application before the court below."

Case Title: Alakhram v. State of UP & Anr.

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