The detention of a person for non-payment of maintenance must be in accordance with the provisions of Section 125 (3) of the Criminal Procedure Code, which require proper adjudication and issuance of warrants for recovery before sentencing to imprisonment.

By the Court.-By this writ application, petitioner seeks his release from custody where he has been committed for non-payment of monthly maintenance in terms of Section 125 (3) of the Criminal Procedure Code, 1973 (hereinafter referred to as the Code). He was committed to custody on 05.07.2010 and notwithstanding his application for release, as filed on 27.08.2010, the Principal Judge, Family Court, West Champaran at Bettiah is passing no orders for his release apparently on the ground that so long as petitioner does not make payment of maintenance to his wife, he shall remain in custody ad infunitum, may be for life.

2. Noticing the peculiar situation where virtually the petitioner has been made to serve life sentence and the insensitivity of the Judge in the matter, we called for the lower Court records to examine for ourselves the facts because if what is being said by the Principal Judge, Family Court is to be accepted then the petitioner would virtually be serving a life sentence with no remission possible. With due respect, we do not think that the law is what the learned, Principal Judge, Family Court contemplates it to be. What is more scandalous is, as will be shown, petitioner has been kept in prison mechanically and that too for months even without any order of remand by the learned Principal Judge, Family Court.

3. We are just noting one submission of the learned counsel for the petitioner which is quite an extreme submission but would show an extreme absurd possibility. Learned counsel submits that, being unable to pay the maintenance if the consequences are automatic imprisonment which, as in petitioner's case would be, imprisonment for life, the petitioner would have done better by killing his wife where he would be sentenced to life imprisonment which would enable him to be released, in all probabilities, upon completion of 14 years of physical imprisonment as against imprisonment ad infinitum without early release in the present case. Shocking it is.

4. On 14.06.2005, petitioner's wife, Munni Devi filed the present case being Matrimonial Case No 85 (M) of 2005 in the Court of Sub-divisional Judicial Magistrate, Bettiah claiming maintenance against the petitioner, her husband. This case was then transferred to the Principal Judge, Family Court, West Champaran at Bettiah on 09.09.2005 upon constitution of the Family Court in the district under the Family Courts Act, 1984.

5. From the records called for, we have seen the application filed on behalf of the estranged wife. In her application itself, she admits that she was married to the petitioner over 21 years back. She alleges that after marriage, she gave birth to a daughter and she was then thrown out of her matrimonial house. For over a decade, she had been staying with her parents with allegedly no support from the petitioner. Even when it came to the marriage of her daughter, petitioner did not participate in any manner and the daughter herself was over 21 years old and married. She alleges in her petition that her husband has some buffaloes and their family has some small agricultural plot. In Paragraph-9 other application, she states that petitioner's father has just retired from Railways service. It is not in controversy that both the petitioner and his wife are virtually illiterate.

6. On 28.12.2005, a show cause was filed by the petitioner in the said proceedings. In the show cause, he stated that immediately upon marriage, he found that his wife was already pregnant and within about three months of marriage she gave birth to the daughter who was obviously not his child. It is because of that reason, over 20 years back, she was sent back to her parents and never returned. There was neither conjugal relationship maintained for over two decades nor any relationship for all those years.

7. Upon this, the Court took evidence of the parties. Persons examined on behalf of the wife also admitted that they had been living separately for over a decade. One inte