Point of Law: Magistrate is empowered to issue distress warrant for the purpose of realization of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may seized in execution of such warrant. Sub-section (3) of Section 125 Cr.P.C. makes it further clear that the jurisdiction of the Magistrate for sentencing such person to imprisonment would arise only after the maintenance allowance, in whole or in part, remains unpaid after the maintenance allowance, in warrant.

JUDGMENT :

1. Heard learned counsel for the applicant and learned A.G.A. for the State.

2. The applicant by means of this application under Section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with a prayer to quash the order dated 30.11.2021 passed by the Principal Judge, Family Court, Kasganj in Case No. 118 of 2020 (Smt. Kaushalya @ Kaushal vs. Vipin Kumar), under Section 128 Cr.P.C., P.S. Kasganj, district-Kasganj. A further prayer is that a direction be issued to the court below to release the applicant from jail forthwith.

3. It is submitted by learned counsel for the applicant that marriage between applicant and opposite party no. 2 was solemnized on 8th December, 2010. Out of the aforesaid wedlock, a baby girl was born. However, after some time, the relationship between the husband and wife became strained and incompatible. Thereafter the opposite party no. 2 has initiated several litigations against the applicant. In connection with the same, she along with her daughter filed an application under Section 125 Cr.P.C. before the Family Court, Kasganj, which was allowed by the Principal Judge, Family Court, Kasganj vide judgment and order dated 30.11.2021. It is also submitted that the applicant is a handicapped person, certificate whereof has been filed as Annexure-2 to the affidavit accompanying the application. Due to the reason he failed to comply with the order passed under Section 125(3) Cr.P.C. and the learned court below has issued the recovery warrant dated 8.10.2021, directing that the applicant shall pay a sum of Rs. 1,65,000/-(Rs. one lac sixty five thousand) to the opposite party no. 2 as maintenance w.e.f. 30.7.2017 to 19.1.2020 and in pursuance of recovery warrant the applicant was sent to jail. On 30.11.2021 the applicant was summoned by the court below and he was produced by the jail authority before the court blow and the court below had passed the order, while detaining the applicant in jail for a period of one month and directed that during detention, the applicant shall pay a sum of Rs. 5,000/-per month to opposite party no. 2, fixing next date, i.e. 2012.2021, directing the Jail Superintendent to produce the applicant again on the next date fixed.

4. It is also submitted by learned counsel for the applicant that provisions of Section 125(3) Cr.P.C. specifically provides for issuance of a warrant for lavying the amount issued in the manner provided for lavying of fines. The learned court below has passed the order dated 30.11.2021 for detention of applicant in jail for one month without complying the provision contained in Section 125(3) Cr.P.C. and without imposing any fine, hence the impugned order dated 30.11.2021 is liable to be quashed. In support of his submissions, learned counsel for the applicant has placed reliance upon the following judgments of Gauhati High Court, Calcutta High Court and Punjab & Haryana High Court:

1. Hazi Abdul Khaleque vs. Mustt. Samsun Nehar, 1991 CriLJ, 1843;

2. Dipankar Banerjee vs. Tanuja Banerjee reported in 1998 CriLJ 907; and

3. Om Prakash @ Parkash vs. Vidya Devi reported in 1992 CrlLJ 658.

5. Per contra, learned A.G.A. for the State has opposed the submissions made by the learned counsel for the applicant by contending that that the applicant is a defaulter and has not paid any amount as awarded by the Family Court under order dated 30.7.2017 to opposite party no. as interim allowance. Therefore, the Family Court has rightly issued recovery warrant against the applicant for realization of the amount so due and there is no error in the order impugned.

6. I have considered the submissions made by the learned counsel for the parties and have gone through the record.

7. Before coming to the merits of the present case, it would be worthwhile to reproduce Sections 125 (3) and 421 Cr.P.C., which read as follows:

"125. Order for maintenance of wives, children and parents. ......

If any person so ordered fails without sufficient cause to comply with the order,