Order on Board

1. Heard Mr. Gajendra Sahu, learned counsel for petitioner. Also heard Mr. Sajeev Kumar Sahu, learned counsel for respondent.

2. The present petition has been filed by the petitioner with the following prayers:

“It is therefore, that this Hon'ble Court may kindly be pleased to allowed this petition and set- aside the impugned order dated 17.05.2019 passed by the learned Family Court Jashpur, District Jashpur, Chhattisgarh, in Misc. Criminal case No. 24/2017, in the interest of justice.”

3. The present case arises from proceedings under Section 125 of the Cr.P.C. wherein the respondent was granted maintenance by the learned Family Court, Jashpur in Misc. Criminal Case No. 113/2015. However, the applicant failed to comply with the said order and did not pay the maintenance amount. Thereafter, the respondent initiated recovery proceedings under Section 125(3) Cr.P.C. for arrears of Rs. 82,500/-, registered as Misc. Criminal Case No. 24/2017, in which the learned Family Court issued a permanent arrest warrant against the applicant vide order dated 04.01.2018, pursuant to which the applicant was arrested on 17.05.2019 and sent to District Jail, Jashpur. Aggrieved by the said order and consequential action, the applicant has filed the present petition challenging its legality.

4. Learned counsel for the petitioner submits that the impugned order dated 17.05.2019 passed by the learned Family Court is wholly illegal, arbitrary and contrary to the settled principles of law, and therefore liable to be set aside, inasmuch as the court below has failed to appreciate the factual and legal aspects of the matter in their proper perspective. It is contended that the respondent had voluntarily left the matrimonial home without any sufficient cause and, therefore, is not entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, however, this material aspect has been completely overlooked by the learned court below. It is further submitted that the petitioner is unemployed and has no independent source of income, due to which he was genuinely unable to comply with the maintenance order, yet the learned Family Court proceeded to issue coercive process without considering his financial incapacity. It is also submitted that the quantum of maintenance awarded is excessive and disproportionate to the petitioner’s means and is liable to be suitably reduced. Additionally, the impugned order has been passed in absence of the petitioner without affording adequate opportunity of hearing, thereby violating principles of natural justice. It is further contended that the petitioner is himself dependent and under financial constraints, which has not been taken into account by the learned court below. Thus, the impugned order suffers from non-application of mind and has been passed in an arbitrary manner, rendering it unsustainable in the eyes of law and liable to be quashed.

5. On the other hand, learned counsel for the respondent submits that the impugned order dated 17.05.2019 passed by the learned Family Court is legal, just and in accordance with law, warranting no interference by this Court. It is contended that the respondent, being legally wedded spouse, was compelled to initiate proceedings under Section 125 of the Code of Criminal Procedure due to neglect and failure on the part of the petitioner to maintain her, and the learned Family Court, after due consideration of the material available on record, has rightly granted maintenance in her favour. It is further submitted that despite the subsisting order, the petitioner willfully and deliberately failed to comply with the same, thereby forcing the respondent to initiate recovery proceedings under Section 125(3) Cr.P.C., wherein the learned court below has rightly exercised its jurisdiction in issuing coercive process including arrest for recovery of arrears.

6. I have heard learned counsel for the parties and perused the documents appended with petition.