[Non-Payment Of Maintenance Allowance] Magistrate Can't Issue Arrest Warrant W/O First Issuing Warrant For Levy Of Fine U/S 421 CrPC: Allahabad HC

The Allahabad High Court recently observed that in the event of any failure on the part of any person to comply with a Court's order to pay maintenance allowance, the correct/appropriate course for the courts is to first issue a warrant for the levy of fine as provided u/s 421 of CrPC for the purpose of realization of the amount.

With this, the bench of Justice Ajit Singh held that in such cases of non-payment of maintenance allowance, the Magistrate has no jurisdiction to issue a warrant of arrest straightway against the person liable, without first levying the amount due as a fine as provided under Section 421 of CrPC.

The case in brief 

The wife of the applicant, along with her daughter filed an application under Section 125 Cr.P.C. before the Family Court, Kasganj seeking maintenance from the applicant-husband. The application was allowed.

However, the applicant being a handicapped person failed to comply with the order and hence, the Court issued a recovery warrant directing him to pay a sum of Rs. 1,65,000/- to the opposite party no. 2 as maintenance w.e.f. July 30, 2017, to January 19, 2020, and in pursuance of the recovery warrant, the applicant was sent to jail vide order dated 30 November 2021.

Challenging that very order passed by the Principal Judge, Family Court, Kasganj, the Applicant-husband moved to the High Court with his 482 CrPC plea.

Before the Court, his counsel argued that the provisions of Section 125(3) Cr.P.C. specifically provides for the issuance of a warrant for levying the amount issued in the manner provided for levying of fines (the procedure for the same is provided under Section 421 of CrPC).

It was further submitted that the Court below passed an order on November 30, 2021, for the detention of the applicant in jail for one month without complying with the provision contained in Section 125(3) Cr.P.C. and without imposing any fine, hence, it was contended that the impugned order was liable to be quashed.

Court's observations and order

At the outset, the Court observed that as per sub-section (3) of Section 125 Cr.P.C., in the event of any failure on the part of any person to comply with an order to pay maintenance allowance, without sufficient cause, the Magistrate is empowered to issue a warrant for levying the amount due in manner provided for levying of fines for every breach of the order.

In this regard, the Court further noted that Section 421Cr.P.C. prescribes the manner for levying fines and clause (a) of sub-Section (1) of Section 421 provides for the issuance of a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender.

In other words, the Court clarified, in the event of any failure without sufficient cause to comply with the order for maintenance allowance, the Magistrate is empowered to issue a distress warrant for the purpose of realization of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may be seized in execution of such warrant (as per the provisions of Section 421 of CrPC). 

Against this backdrop, the Court categorically held thus:

"The Magistrate has no jurisdiction to issue a warrant of arrest straightway against the person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the court without first levying the amount due as fine and without making any attempt for reaslization that fine in one or both the modes for recovery of that fine as provided for in clauses (a) or (b) of sub-Section (1) of Section 421 Cr.P.C. say by issuance of distress warrant for attachment and sale of movable property belonging to the defaulter as contemplated under Section 421 (1) (a) and without first sentencing the defaulter to imprisonment after the execution of the distress warrant."

In view of the aforesaid, this Court concluded that the Principal Judge, Family Court, Kasganj had not followed the established procedure for issuance of recovery warrant in default of payment of arrears maintenance allowance within the time allowed by him in the execution case concerned. therefore, the order was set aside. 

Case title - Vipin Kumar v. State of U.P. and Another

Case Citation: 2022 LiveLaw (AB) 192

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