Allahabad High Court
Abbas vs State Of U.P. And Another on 13 February, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:21252 Court No. - 73 Case :- APPLICATION U/S 482 No. - 32025 of 2024 Applicant :- Abbas Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been preferred against the order dated 22.08.2024, passed by learned Principal Judge, Family Court, Baghpat, in Execution (Criminal) Case No.192 of 2019, under Section 128 Cr.P.C., arising out of case No. 2672 of 2007, under Section 125 Cr.P.C., Police Station- Baraut, District- Baghpat, whereby the applicant has been sent to jail in default of payment of arrears of maintenance.
3. It has been submitted by learned counsel for the applicant that the opposite party No. 2 was awarded maintenance by the Family Court vide order dated 21.02.2008 and thereafter the opposite party No. 2 has initiated proceedings under Section 128 Cr.P.C. It was submitted that due to default in payment of maintenance, the applicant/husband was sent to jail by the Family Court for one month w.e.f. 23.07.2024 to 22.08.2024. After expiry of that period, on 22.08.2024 the applicant/husband was again sent to jail for a period of one month w.e.f. 22.08.2024 to 20.09.2024. It was submitted that the applicant is continuously being detained in jail since 23.07.2024 as after expiry of period of one month, he is again remanded to custody for a fresh period of one month and that process is being repeated every month, whereas no application is being filed by the opposite party No. 2 under section 125(3) CrPC. It is further submitted that the applicant can arrange money for payment of arrears of maintenance only after he is released from jail. Referring to facts of the matter, it was submitted that impugned order is liable to be set aside.
4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order.
5. I have considered the rival submissions and perused the record.
6. It appears from record that opposite party No. 2 is wife of applicant and she was awarded maintenance by the Principal Judge, Family Court vide order dated 21.02.2008. It appears that the opposite party No. 2 has initiated proceedings under Section 128 Cr.P.C., wherein due to non-payment of maintenance / arrears of maintenance, the warrants were issued and the applicant / husband was sent to jail for a period of one month w.e.f. 23.07.2024 to 22.08.2024. After expiry of that period, on 22.08.2024 the applicant/husband was again sent to jail for a period of one month w.e.f. 22.08.2024 to 20.09.2024. It was submitted that applicant is continuously being confined in jail since 23.07.2024 as after expiry of imprisonment of one month, he is sent to jail for a fresh period of one month and this process is being repeated from month to month.
7. At this stage, it would be apt to refer the provisions of section 125(3) CrPC, which reads as under:
"125. Order for maintenance of wives, children and parents.
(1) xxxxxx (2) xxxxx (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may 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,] [Substituted by Act 50 of 2001, Section 2 for "allowance" (w.e.f. 24-9-2001).] 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 :
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing."
8. Thus, it apparent from the aforesaid provisions that if the person who has been ordered to pay maintenance under aforesaid provisions fails without sufficient cause to comply with the order, the Magistrate / Family Court may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may 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. The term 'may' used in aforesaid provisions indicates that the Magistrate / Family Court has to consider the attending facts and has to exercise its discretion judiciously and it is not so that whenever an application is made by the wife/child, in whose favour maintenance has been granted, the person concern has to be sent to jail in a routine manner. Before issuance of such warrant the condition of non-compliance of order of maintenance 'without sufficient cause' has also to be taken in to consideration.
9. The first of proviso of aforesaid provision further mandates that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.
10. At this stage it would be worthwhile to refer case of Shahada Khatoon and Others Vs. Amjad Ali and Others, J.T. 1999(10) SC 260, wherein the Hon'ble Apex Court has considered provisions of section 125(3) CrPC and held as under:-
"The language of Sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month, for breach of non-compliance of the order of the Magistrate the wife can approach again to the Magistrate for similar relief. By no stretch of imagination the Magistrate can be permitted to impose sentence for more than one month. In that view of the matter the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. The appeal accordingly fails and is dismissed."
11. It appears from aforesaid pronouncement, that Magistrate / Family Court has power under Section 125(3) Cr.P.C. to impose imprisonment for a term, which may extend to one month or until payment of fine, whichever is sooner. This power of Magistrate / Court can not be enlarged and the only remedy remedy would be after after expiry of one month for breach of non-compliance with order of Magistrate, the wife can approach Magistrate again for similar relief.
12. Reverting to the facts of the case at hand, it may be accentuated that for non-compliance of order of maintenance, the applicant (husband) was sent to jail for a period of one month with effect from 23.07.2024 to 22.08.2024. After expiry of that period, on 22.08.2024 the applicant/husband was again sent to jail for a period of one month w.e.f. 22.08.2024 to 20.09.2024. It was submitted that the applicant is continuously being detained in jail since 23.07.2024 as after expiry of period of one month, he is again remanded to custody for a fresh period of one month and that process is being repeated every month. One of contention raised on behalf of applicant is that the applicant (husband) is being remanded to custody from month to month, without there being any application of opposite party No. 2 / wife under section 125(3) CrPC. Second point raised on behalf of applicant is that applicant would arrange money to pay arrears of maintenance after he comes out from jail. However, in the instant application under Section 482 Cr.P.C., only order dated 22.08.2024 is being impugned and by that order the Family Court has sent the applicant to jail for a period of 30 days starting from 22.08.2024. As that period of imprisonment has already been expired, thus, the specific prayer sought by applicant cannot be granted. However, it was submitted that applicant / husband is still in jail as after expiry of imprisonment of one month period, he is again sent to fresh period of imprisonment of one month.
13. In view of aforesaid facts, it is directed that in case the applicant (husband) moves an application before the Family Court concerned for his release from custody, raising his plea that he has been sent to jail without there being an application under section 125(3) CrPC and/ or that he is ready to arrange money for payment of maintenance in installments within a reasonable time after he comes out from jail, the said application shall be considered and decided by the Family Court concerned expeditiously in accordance with law.
14. The application under section 482 CrPC is disposed of in above terms.
Order Date :- 13.2.2025 Anand