Himachal Pradesh High Court
Smt. Prabha Devi W/O Sh. Hira Lal vs Sh. Hira Lal S/O Sh. Ganesh Ram ... on 22 July, 2015
Author: P. S. Rana
Bench: P. S. Rana
HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MMO No. 110/2015
Reserved on : 9.7.2015
.
Date of order: 22nd July, 2015
Smt. Prabha Devi w/o Sh. Hira Lal .....Petitioner
Versus
Sh. Hira Lal S/o Sh. GAnesh Ram ...Non-petitioner
Coram:
The Hon'ble Mr. Justice P. S. Rana, Judge.
Whether approved for reporting? Yes1
For the petitioner: M/s. Shilpa Sood and Atul Jhingan,
Advocates
For the non-petitioner : Mr. Y. K. Thakur, Advocate
P. S. Rana, J. (Oral)
ORDER Present petition is filed under Section 482 Code of Criminal Procedure 1973 for issuing necessary directions to executing court relating to four execution petitions filed under Section 125 (3) Code of Criminal Procedure 1973.
BRIEF FACTS OF THE CASE
2. Smt. Prabha Devi is legally wedded wife of Sh. Hira Lal. Smt. Prabha Devi filed Cr.MP No. 249-4 of 2008 titled Prabha Devi vs. Hira Lal before learned Judicial Magistrate Ist Class Court No.2, Shimla (H.P.) under Section 127 Cr.PC for enhancement of maintenance 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 18:36:53 :::HCHP 2 allowance granted under Section 125 Cr.PC. Learned Judicial Magistrate Ist Class Court No.2, Shimla disposed of the petition filed under Section 127 Cr.PC on dated 16.7.2010 for enhancement of .
maintenance allowance and directed Sh. Hira Lal to pay a sum of `6000/- (Rupee six thousand) as enhanced maintenance to petitioner namely Smt. Prabha Devi per month from the date of order.
3. Thereafter Smt. Prabha Devi filed following execution petitions:
Ex.Petn. No. Instituted Name of Court Status report Period for which the on amount claimed (1) (2) (3) (4) (5) Ex.Ptn. No. 48- JMIC, Court No.5, Dismissed in From 14.10.2010 to
4 of 2011 Shimla default on 14.9.2011 converted as 14.10.2011 25.11.2014 RBT No. 100-4 of 14/11 Ex.Petn.
16.7.2012 JMIC, Court No.5, Dismissed in From 14.9.2011 to
No.130-4 of Shimla default on 14.7.2012
2012 18.02.2015
Ex.Petn. 31.10.2013 ACJM, Shimla Fixed for From July 2012 to
No.146-4 of 29.07.2015 30.9.2013
2013
Ex.Petn. 16.9.2014 JMIC, Court No.5, Fixed for From 30.9.2013 to
No.105-4 of Shimla 31.07.2015 30.8.2014
2014
4. Heard. As per Section 125(3) of the Code of Criminal Procedure, 1973 if any person fails without sufficient cause to comply the order of maintenance allowance then the Judicial Magistrate is under legal obligation to issue a warrant for levying the amount due in the manner provided for levying fine. As per Section 125(3) of the Code of Criminal Procedure Judicial Magistrate is also competent to sentence such person for the whole or any part of each month maintenance amount 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. As per Section 125(3) of the Code of Criminal Procedure no warrant shall be issued for recovery of the amount unless execution ::: Downloaded on - 15/04/2017 18:36:53 :::HCHP 3 application is filed before the Court within a period of one year from the date on which it became due.
5. It is well settled law that Section 125 Cr.PC is a special Section .
for the protection of maintenance rights of (a) Wife unable to maintain herself (b) Legitimate or illegitimate minor child whether married or not unable to maintain themselves (c) Legitimate or illegitimate child who have attained the majority but suffering from physical or mental abnormality unable to maintain themselves (d) father or mother unable to maintain themselves. It is also well settled law that procedure of execution of maintenance order is specifically defined under Section 125(3) of the Code of Criminal Procedure, 1973. It is held that Judicial Magistrate before whom execution petitions relating to maintenance allowance are pending is under legal obligation to dispose of the execution proceedings expeditiously in order to impart effective maintenance allowance to wife, minor child or father and mother who are unable to maintain themselves. It is held that casual dates should not be given in execution petition relating to maintenance allowance by the learned trial Court.
6. Learned Advocate appearing on behalf of Sh. Hira Lal had given statement in the High Court on dated 9.7.2015 that amount to the tune of Rs. 182823 (one lac eighty two thousand eight hundred twenty three) is due to Smt. Prabha Devi and her minor children. Courts are under legal obligations to protect interest of minor children. It is well settled law that as per Section 125(3) Cr.PC maintenance allowance can be recovered in the manner provided for levying fine. Procedure for recovery of fine has been mentioned under Section 421 of the Code ::: Downloaded on - 15/04/2017 18:36:53 :::HCHP 4 of Criminal Procedure 1973. As per Section 421 Cr.PC Judicial Magistrate is legally competent to take action for recovery of the fine in either or both of the following ways; (a) Issue of warrant for the .
levy of the amount by attachment and sale of any movable property belonging to the offender (b) Issue a warrant to the Collector of the District authorizing him to realize the amount as arrears of land revenue from movable and immovable property or both of the defaulter. It is held that learned Judicial magistrate is competent to recover the amount in both ways simultaneously by way of issuing warrants for recovery of maintenance allowance in the interest of minors when the amount due was huge maintenance amount. All the execution petitions are clubbed together with directions to learned Additional Chief Judicial Magistrate to dispose them expeditiously in accordance with law. Execution petitions which have been dismissed in default will be decided in accordance with law only.
7. In view of the above stated facts petition filed under Section 482 Cr.PC is allowed and direction is issued to learned Addl. Chief Judicial Magistrate Shimla (H.P.) to recover maintenance amount due expeditiously in accordance with law strictly as per provisions (a) & (b) of Section 421 Cr.PC simultaneously by way of issuing warrants.
Parties are directed to appear before learned Addl. Chief Judicial Magistrate Shimla (H.P.) on 7th August, 2015. Cr.MMO No.110 of 2015 is disposed of. Pending applications if any also disposed of July 22nd, 2015 (P. S. Rana), (rana) Judge.
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