Rajasthan High Court - Jaipur
Ajeet Arora vs Dolly Arora And Ors on 6 March, 2017
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B.Criminal Miscellaneous (Petition) No. 1179 / 2017
Ajeet Arora S/o Kishan Lal Arora, R/o Chopra Farm, Chopra School
Ke Pass, Main Road Station, Kota, District Kota.
----Petitioner
Versus
1. Dolly Arora W/o Ajeet Arora, D/o Iqbal Chand B/c Punjabi, R/o
Balchand Pata Uprali Doli, Bundi Police Station Bundi, Raj.
2. Gaurav, Through Natural Guardian Mother Dolly Arora W/o
Ajeet Arora B/c Punjabi, Aged About 13 Years, R/o Balchand Pata
Uprali Doli, Bundi Police Station Bundi, Raj.
3. Karan S/o Ajeet Arora, Through Natural Guardian Mother Dolly
Arora W/o Ajeet Arora B/c Punjabi, Aged About 10 Years, R/o
Balchand Pata Uprali Doli, Bundi Police Station Bundi, Raj.
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Mayak Kumar Choudhary for Ms. Pooja Choudhary For Respondent(s) : Mr. Rishi Raj Singh, PP _____________________________________________________ HON'BLE MR. JUSTICE PANKAJ BHANDARI Judgment / Order 06/03/2017 Petitioner has preferred this Misc. Petition for quashing and setting aside the proceedings for enforcement of the order of maintenance passed by Family Judge, Bundi, (Rajasthan). It is contended by counsel for the petitioner that the Family Judge passed the order on 21.06.2016 directing the petitioner to pay Rs.5,000/- per month as maintenance to his wife and Rs.2,500/- per month each for his two sons aged about 13 and 10 years from the date of filing of the application under Section 125 Cr.P.C. by the respondents.
(2 of 4) [CRLMP-1179/2017] The petitioner has approached this Court contending that the order can be enforced only in accordance with Section 128 of Cr.P.C. and the application under Section 125(3) Cr.P.C. is not maintainable.
Counsel for the petitioner has placed reliance on P. Vaithi Versus Kanagavalli S.B. Criminal Revision No. 7237/2009 decided on Madras High Court on 02.02.2010. where in the Madras High Court has held that the legislature has fixed a period of one year for an application moved under Section 125(3) but such limitation is not provided for an application filed under Section 128 Cr.P.C. The Court held that an application under Section 128 of Cr.P.C. though filed after one year was maintainable. I have considered the contentions perused Section 125(3), Section 128 Cr.P.C. Section 18(2) of the Family Court Act provides that an order passed by the Family Court under Chapter IX of Criminal Procedure shall be executed in the manner prescribed for the execution of such order by that Code.
Under Cr.P.C. there are two provisions which provide for execution of the orders.
"Section 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. Section 128. Enforcement of order of (3 of 4) [CRLMP-1179/2017] 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.]."
A bare perusal of Section 125(3) makes it clear that if any person 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 Section 128 however provides that the order passed under Section 125 may be enforce 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. Section 128, therefore, give an additional discretion to the person in whose favour the order has been made to apply before the Magistrate within whose jurisdiction the opposite party is residing. This Section, however, does not has the moving of an application before the Court which has passed the order.
Sub-Section (3) of section 125 specifically Castes a duty upon the Court and the Court may issue warrant for levying the amount due in the manner provided for levying fines. Section 128 Cr.P.C. is only on additional discretion and mode to recover (4 of 4) [CRLMP-1179/2017] the amount.
The respondent herein has moved an application under Section 125(3) before the Family Judge, Bundi, who has passed the order under Section 125(3) Cr.P.C., merely because the petitioner is residing in Kota, he cannot challenge the proceeding being initiated at Bundi for execution of the order passed under Section 125 Cr.P.C.
Consequently no ground is made out for quashing or interfering with the execution proceedings initiated at Bundi.
The Misc. Petition is accordingly dismissed.
(PANKAJ BHANDARI)J. Arun/19