The court emphasized that the Magistrate is not bound to proceed only against the properties of the person bound to pay maintenance and can detain the defaulter for non-payment of maintenance. Additionally, the court highlighted the need for legislative amendment to address the delay in recovering maintenance arrears.

1. Animadverting upon the order dated 17. 2006 passed by the learned Chief Judicial Magistrate, Vellore in Crl. M.P. No. 274 of 2003, this criminal revision is focused.

2. Broadly but briefly, narratively but succinctly, the case of the revision petitioner would run thus:

The revision petitioner herein was arrayed as respondent in Crl. M.P. No. 274 of 2003 filed by the respondent herein for the purpose of recovering the maintenance arrears for a period of 16 months from 210. 2000 to 23. 2002; whereupon the learned Magistrate, ordered the revision petitioner herein to undergo 12 months imprisonment in view of non-payment of maintenance as ordered by the Court. Being aggrieved by and dissatisfied with the order of the lower Court, this revision is filed mainly on the ground that the respondent herein instead of taking steps to recover the arrears of maintenance by proceeding against the immovable property owned by the petitioner, had chosen to obtain arrest warrant as against the petitioner so as to detain him in jail and the learned Magistrate also without considering the feasibility of recovering the maintenance by proceeding as against the immovable property of the revision petitioner, simply, had chosen to order for detaining him for a period of 12 months; there is no law authorising the Magistrate to imprison for more than 1 month, the revision petitioner at a stretch for his default in paying maintenance.

3. Despite service of notice, the respondent has not appeared.

4. Heard the learned counsel for the revision petitioner.

5. The points for consideration are as to:

(i) Whether the holder of maintenance order is expected to exhaust the remedy of recovering the maintenance arrears at the first instance by proceeding as against the properties of the individual bound to pay maintenance by getting appropriate orders from the Magistrate and Whether the Magistrate is bound to proceed at the first instance only as against the properties of such person?

(ii) Whether the Magistrate is justified in ordering detaining of accused for one year at a stretch for non-payment of maintenance for 16 months?

Point No. 1:

6. The learned counsel for the petitioner would advance and develop, set forth and put forth his argument to the effect that the learned Magistrate was not justified in passing order for detaining the revision petitioner for a period of 12 months without taking steps to recover the dues, so to say, the arrears of maintenance by selling the immovable properties of the petitioner.

7. At this juncture, I would like to refer to Section 125(3) of the Code of Criminal Procedure and it is extracted here under for ready reference:

“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:

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.

Explanation-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”

A plain reading of it would amply make the