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PUNJAB & HARYANA HIGH COURT
V.K.Bali, J.
Jaivir
Versus
Santosh
Criminal Miscellaneous No. 998 of 1995,
Decided On : FEBRUARY 14, 1995
Section 125(3) - Maintenance Allowance - The court discussed the provision of Section 125(3) of the Code of Criminal Procedure and emphasized that resorting to attachment of property should precede civil imprisonment for non-payment of maintenance. However, in the specific case, the petitioner's lack of property rendered the attachment futile, leading to the court's decision.
Fact of the Case:
The petitioner defaulted in paying maintenance allowance to the respondent-wife, and the court considered the issue of resorting to attachment of property before civil imprisonment.
Finding of the Court:
The court found that the petitioner had persistently defaulted in paying maintenance to the respondent-wife, and in the absence of property for attachment, resorting to attachment as a first step would be futile.
Issues: The key issue was the default in payment of maintenance allowance and the appropriate course of action to ensure the respondent-wife's maintenance.
Ratio Decidendi: The court emphasized that in cases of default in maintenance payment, resorting to attachment of property should precede civil imprisonment, but in the absence of property, the court may consider alternative measures.
Final Decision: The court decided against remanding the case for attachment proceedings, considering the petitioner's lack of property, and upheld the default in payment of maintenance allowance.
V.K.Bali, J.
1. It is true that by virtue of Section 125(3) of the Code of Criminal Procedure and the judgment of this Court in Raj Kumar v. Smt Krishna Kumari, 1984(2) Recent Criminal Reports 434, 1984(2) Chandigarh Law Reporter 396, warrant of arrest cannot be issued and the party defaulting in payment cannot be sent to civil imprisonment as a matter of first resort and that necessarily resort, prior in point of time, has to be made to attach the property. That, however, in peculiar facts of this case, cannot come to the rescue of petitioner. It is conceded that petitioner has no property so that the same could be put to auction with a view to provide maintenance to respondent-wife. There is persistent, default for paying the maintenance allowance to respondent-wife in the present case and remand of the case directing the Magistrate in first resort to proceedings of attachment would be an exercise in futility.
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