A PERSON CAN BE IMPRISONED FOR ARREARS OF MAINTENANCE ALLOWANCE ONLY IF SOME AMOUNT REMAINS UNPAID AFTER THE EXECUTION OF THE WARRANT FOR ATTACHMENT AND SALE OF HIS PROPERTY.

, J.

1. Through this petition filed Under Sec.482 of the Code of Criminal Procedure, the petitioner seeks quashment of the order dated 20.7.1988 of the Judicial Magistrate 1st Class, Mansa and the order dated 5.4.1989 of the Sessions Judge, Bhatinda, inter-alia, on the ground that the Magistrate having not resorted to the realisation of the arrears of maintenance allowance by attachment and sale of the property of the petitioner as envisaged Under Sec.125 (3) of the Code of Criminal Procedure, 1973, hereinafter referred to as the Code, the impugned order of confining the petitioner to civil prison in liew of arrears of maintenance allowance was illegal and void in the eye of law.

2. The fact of the case are that in proceedings Under Sec.125 of the Code, Judicial Magistrate 1st Class, Mansa, vide his order dated 3.10.1983 awarded maintenance allowance to the tune of Rs.200/- per month to Smt. Jass Kaur wife of Sethi Singh petitioner and at the rate of Rs.50/- each to Mit Kaur and Rani, minor daughters with effect from 27.1.1982, the date of filing application Sethi Singh failed to pay arrears of maintenance allowance upon which Smt. Jass Kaur on behalf of herself and on behalf of two minor daughters filed a petition for execution of the above referred order regarding arrears of maintenance allowance from 27.1.1982 to 26.11.1983. Notice of this application was issued to Sethi Singh who refused to accept service on 1.2.1984. Thereafter warrants of attachment of his property were issued on 18.3.1985, 17.5.1985, 25.7.1985 and 25.9.1985.

3. The execution of these warrants was resisted by Sethi Singh and other members of his family on 17.8.1985 and 27.10.1985. The bailiff attached to the Court of Sub-Judge 1st Class, Dawali, executing these warrants then sought the police help for execution of these warrants. Thereafter, warrants of attachment of the property were issued for 16.1.1986, 7.2.1986, 15.3.1986, 26.4.1986,26.5.1986,26.7.1986,26.9.1986, 25.10.1986.13.12.1986, 23.1.1987, 3.3.1987, 6.6.1987 and 6.7.1987. On 9.4.1986, Smt. Jass Kaur filed an application that in order to avoid the realisation of the maintenance allowance, her husband Sethi Singh had alienated his entire property. The Trial Court vide order dated 10.4.1986 issued a conditional warrants of arrest of the petitioner. On 13.3.1987, Smt. Jass Kaur filed an affidavit to the effect that her husband owns a tractor along with his brothers and the same could not be attached and that the amount be got realised from her husband by sending him to jail. It appears that Sethi Singh was sent to jail since 16.3.1988, but no steps were taken Under Sec.421 of the Code for realisation of the arrears of maintenance allowance. Accordingly, the learned Magistrate vide impugned order dated 20.7.1988, directed the petitioner to undergo simple imprisonment for one year and ten months for arrears of similar period from 27.1.1982 to 26.11.1983 with the direction that he should be released forthwith on deposit of the maintenance allowance.

4. The petitioner then filed revision petition before the learned Sessions Judge, Bhatinda, which was dismissed on 5.4.1989 in the absence of the Counsel for the petitioner Sethi Singh by holding that there was no illegality or infirmity in the impugned order of the Magistrate. Mr. R. K. Battas, the learned Counsel for Sethi Singh petitioner, contends that Under Sec.125 (3) of the Code, a person could be imprisoned for arrears of maintenance allowance if some amount remains unpaid after the execution of the warrant. Reliance in this regard has been placed on the decisions of this Court in Dalip Singh V/s. Smt. Balwinder Kaur and Others, 1973 (1) C. L. R.162; Karnail Singh V/s. Gurdial Kaur, 1974 Cr. L. J.38 and Raj Kumar V/s. Smt. Krishna Kumari and Another, 1984 (2) C. L. R.396. The learned Counsel for the respondents, on the other hand, maintains on the strength of the Division Bench decision of the Calcutta High Court in Moddari Bin V/s. Sukdeo