Point of Law: Non payment of one month maintenance allowance - If any person so ordered fails without sufficient cause to comply with order, any such Magistrate may issue warrant for levying amount due in manner provided for levying fines, and may sentence such person, for whole or any part of each month’s allowance remaining unpaid after execution of warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.

JUDGMENT :

1. The present revision petition is filed against the order dated 22.04.2013 passed by the learned Judicial Magistrate 1st Class, (City Judge, Jammu) in case titled “Kunti Devi and others v. Tarsem Lal” whereby the learned Magistrate has imposed one month sentence on the respondent-petitioner herein for the non payment of one month maintenance allowance to the petitioner-respondent herein i.e. Rs.3000/- and also directed the Naib Tehsildar to attach the property of the respondent.

2. Heard learned counsel for the petitioner and perused the record of the trial Court.

3. The order impugned has been passed in terms of Section 488(3) of Cr.P.C. as the petitioner had failed to comply with the order of maintenance and remained in arrears. The respondent for seeking execution of order made application under Section 488 Cr.P.C. read with section 490 Cr.P.C. for recovery of arrears of maintenance by initiating coercive measures by ordering his arrest and lodging in prison. It was alleged that the petitioner had regularly committed willful default in payment of maintenance awarded to her along with minor children and is in arrears. The order of maintenance was passed on 27.02.2006 whereby maintenance was awarded @ Rs.1,000/- to Kunti Devi (Wife), Baby Choudhary (Daughter) and Master Rishu Choudhary (son) of the petitioner, namely Tarsem Lal. As the petitioner was irregular in payment of maintenance, they filed execution petition. The petitioner was found to be in arrears and for recovery thereof, number of opportunities are shown to have been given to him but he had been avoiding payment of maintenance. As per the petition, an amount of Rs. 84,000/- was arrears. In addition to the application seeking detention of the petitioner herein for having committed willful default in payment of maintenance, another application was filed before the trial court for attachment of the property on 08.02.2012 and on that date as per the order impugned, the arrears had mounted to Rs. 1,47,000/-.

4. The trial Court after finding and taking into account that the petitioner had willfully defaulted payment observed that the interest of justice would be served, in case, for recovery of such amount, the property of the petitioner is attached and he is sentenced to one month’s imprisonment for non payment of one month maintenance allowance to the respondent. Naib Tehsildar was directed to attach the property of the petitioner falling under Khasra No. 840 measuring 4 kanals and 16 marlas. The petitioner was also ordered to be sent to Judicial Custody in Central Jail, Kotbalwal and it was observed in the order that in case he deposits an amount of Rs. 3000/- with the Superintendent Central Jail, Kotbalwal he shall be released forthwith from the judicial Custody. This order has been passed on 22.04.2013 under section 488(3) of Cr.P.C.

5. The order dated 27.02.2006 whereby the maintenance has been granted in favour of the respondent along with her children has not been challenged by the petitioner, as such, the said order granting maintenance by the trial court in favour of the respondent along with her children has attained finality. In this revision petition, the son and the daughter who claimed maintenance from the petitioner and who also sought execution of the order of maintenance, have not been made parties to this revision petition. Petitioner is relying on some settlement deed and on the basis of which, he makes a submission that he is not in arrears. This fact was not before the trial court nor it was claimed by the petitioner before the trial court at the time when execution of the order was sought and the order impugned was passed. It appears to be an afterthought.

6. Had the amount been paid and settlement arrived at between the parties, the petitioner would have submitted the same before the trial Court and stated before it that he has paid amount to the respondent. What was stated by him before the trial Court is that he has cleared maximum amou