Gauhati High Court
Page No.# 1/5 vs The State Bank Of India And 4 Ors on 19 September, 2025
Page No.# 1/5
GAHC010232372024
2025:GAU-AS:12994
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5850/2024
ARCHANA DEORI
W/O- SRI TARA PRASAD TAMULI, VILLAGE- NAMDEWRIGAON, P.O.-
NAMDEWRIGAON, P.S.- PULIBOR DISTRICT- JORHAT, ASSAM, PIN- 785108
VERSUS
THE STATE BANK OF INDIA AND 4 ORS
REPRESENTED BY CMD (CHAIRMAN CUM MANAGING DIRECTOR), STATE
BANK BHAVAN, MADAME CAMA ROAD, NARIMAN POINT, MUMBAI-
400021
2:THE REGIONAL BUSINESS OFFICE
STATE BANK OF INDIA
CHOWKIDINGEE
T.R. PHUKAN ROAD
P.O.- DIBRUGARH
ASSAM
PIN- 786001
3:THE BRANCH MANAGER
MORAN BRANCH
STATE BANK OF INDIA
P.O.- MORANHAT
DISTRICT DIBRUGARH
PIN- 785670
4:THE COMMANDANT
19TH AP (IR) BN
TENGAKHAT
DIBRUGARH
P.O.- TENGAKHAT
P.S. TENGAKHAT
Page No.# 2/5
PIN- 786103
5:TARA PRASAD TAMULI
S/O- SRI CHITRADHAR TAMULI
CONSTABLE
19TH AP(IR) BN DIBRUGARH
ASSAM
C/O- COMMANDANT
CONSTABLE
19TH AP(IR) BN
DIBRUGARH
ASSA
Advocate for the Petitioner : MR. S CHAUHAN, R DEB,MR N ALAM,MR. P MAZUMDER,M.
BORUAH
Advocate for the Respondent : SC, SBI, MR T CHHETRI (R5),MR. A GANGULY (R5),MR. B K
SEN,SR. GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KARDAK ETE
ORDER
Date : 19-09-2025 Heard Mr. S. Chauhan, learned counsel for the petitioner. Also heard Mr. A. Ganguly and Mr. T. Chetri, learned counsels for the respondent No. 5 and Mr. B. K. Sen, learned Standing Counsel, SBI.
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for a direction to pay the amount of maintenance in terms of the orders dated 08.02.2018, 25.06.2018 and 28.06.2018 passed by the learned Chief Judicial Magistrate, Morigaon by deducting the arrear amount of Rs. 1,52,000/- (Rupees One Lakh Fifty Two Thousand) from the month of April, 2023 to October, 2024 and also to deduct Rs. 8000/- (Rupees Eight Thousand) per month from the Saving Bank Account No. 31530341447 of the respondent No. 5.
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3. The case of the petitioner is that she had married respondent No. 5 on 11.10.2011 and got their marriage registered before the Marriage Officer, Digrugarh, for which a Marriage Certificate was issued being No. 113 of 2012. Thereafter, the relationship between the petitioner and the respondent No. 7 became strained.
4. It is contended that the petitioner was ousted from the matrimonial home and could not manage her living. The petitioner, therefore, instituted a Maintenance case being M. R. Case No. 343/2013 in the Court of the learned Chief Judicial Magistrate, Morigaon, under Section 125 of the Cr.P.C. (corresponding to Section 144 of the BNSS, 2023). Accordingly, vide an order dated 03.06.2014, the respondent No. 5 was directed to pay monthly maintenance allowance of Rs. 4,000/- (Rupees Four Thousand) to the petitioner w.e.f. the date of the order. Thereafter, the maintenance amount was enhanced to Rs. 8,000/- (Rupees Eight Thousand) by order dated 07.09.2017. Finally, vide order dated 25.06.2018, the Branch Manager, SBI, Moran Branch (Dibrugarh) was directed to freeze the savings account of the respondent No. 5 so as to facilitate the deduction of maintenance amount.
5. Alleging that the order of the learned Chief Judicial Magistrate has not been complied with for payment of maintenance/arrears and not freezing the account of the respondent No. 5, the present writ petition is filed for enforcement of the order of maintenance and arrears and for a direction to freeze the account of the respondent No. 5 for payment of arrears as directed by the Chief Judicial Magistrate.
6. Mr. Chauhan, learned counsel for the petitioner submits that since the order of the learned CJM has not been complied with by the Bank and the other respondents, the petitioner is compelled to file the present petition by invoking the writ jurisdiction. Therefore, the maintenance order and arrears may be Page No.# 4/5 directed to be enforced.
7. The learned counsel for the respondents, on the other hand, submits that the present writ petition is not maintainable as the claim of the petitioner is for payment of maintenance/arrears of maintenance, for which the appropriate forum would be the Court of Magistrate.
8. Considered the submissions of the learned counsels for the parties.
9. Admittedly, the petitioner and the respondent No. 5 were married and due to strained relationship between them, the petitioner initiated a maintenance proceedings under Section 125 of the Cr.P.C. (corresponding to Section 144 of the BNSS, 2023). It is also admitted position that the petitioner was initially granted maintenance of Rs. 4.000/- monthly and thereafter, enhanced to Rs. 8,000/-, which the petitioner is being paid regularly. The issue raised by the petitioner is essentially enforcement of maintenance order and for payment of arrears.
10. Procedure on failure to comply with the order of maintenance and every breach of the order is provided under Section 125 (3) of the Cr.P.C. (corresponding to Section 144 (3) of the BNSS, 2023), which is quoted hereunder:
"125. ...
(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,] 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."
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11. For enforcement of the order of maintenance Section 128 of the Cr.P.C, 1973 (corresponding to Section 147 of BNSS, 2023), provides, which is quoted hereunder:
"...128. Enforcement of order of maintenance.- A copy of the order of [maintenance or interim maintenance and expenses of proceeding, as the case may be] shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to [whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the [allowance, or as the case may be, expenses due]."
12. Bare reading of the above provision clearly shows that to enforce maintenance order, one must file an application in the Magistrate's Court for recovery of the unpaid amount/arrears for issuance of a warrant to levy the amount as a fine, which may involve attaching and selling the defaulter's property. If the amount remains unpaid after execution of warrant, the Magistrate may sentence the defaulter. Thus, it is the Court of Magistrate who has to enforce the maintenance order or arrears.
13. Having considered the provisions of Sections 125 (3) of the Cr.P.C, 1973 (corresponding to Section 144 (3) of the BNSS, 2023) and 128 of the Cr.P.C, 1973 (corresponding to Section 147 of BNSS, 2023), it is clear that for enforcement of the order of maintenance, it is the concerned Magistrate, which has to enforce the order by following the execution procedure prescribed. Thus, the writ petition would not be maintainable.
14. Accordingly, writ petition is dismissed being not maintainable.
JUDGE Comparing Assistant