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Ch 13. Judgments about arrears of maintenance, warrant, arrest, jail etc

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Ch 13. Judgments about arrears of maintenance, warrant, arrest, jail etc

Warrant/arrest etc

Arrears of maintenance Rs 69000, husband paid 50000 already, HC stays execution of warrant against husband

Use this judgment when several facts in your case are similar to following\

  1. Warning: not paying ordered maintenance purely because of emotional reasons like teaching wife a lesson etc is risky and not a recommended thing in my techniques of fighting cases.

  2. If you have been in arrears of maintenance and a warrant has been issued which may lead to your arrest

Birendra Prasad vs The State of Jharkhand - Jharkhand HC 2014

Important parts of judgment\

That since Rs. 50,000/- has already been deposited by the petitioner as permanent alimony, thus the outstanding amount is Rs. 19,000/- after deduction of the amount of permanent alimony. That he is willing to deposit 50% of the remaining amount i.e. Rs. 10,000/- (ten thousand).

Since the petitioner has already deposited Rs. 50,000/- in the Court of Principal Judge Family Court, Daltonganj on 13.04.2010 (as per Annexure-2) and he is ready to deposit i.e. Rs. 10,000/- (ten thousand) by way of draft in the court below within two weeks, the court below shall stay the execution of the warrant against the petitioner.

I.A. No. 3776 of 2014 Issue notice to the O.P. No.2 under registered cover with A/D as well as under ordinary process, for which requisites etc. must be filed within one week in revision application as well as interlocutory application.

Till then, no coercive steps shall be taken against the petitioner in connection with M.P. Case No. 38 of 2009, pending in the Court of Principal Judge, Family Court, Palamau at Daltongaj.

Use this judgment when several facts in your case are similar to following\

  1. Warning: not paying ordered maintenance purely because of emotional reasons like teaching wife a lesson etc is risky and not a recommended thing in my techniques of fighting cases.

  2. Maintenance arrears are there and fine levy warrant (CrPC 421) for attachment or sale issued

  3. Warrant could not be executed and jail term under CrPC 125 is likely

  4. You want to know about process of fine levy warrant and what happens if execution fails or succeeds, and how much jail term possible in CrPC 125

Sethi Singh vs Jass Kaur And Anr - P&H HC 1990

Important parts of judgment\

8. In the case in hand, the perusal of the file of the Executing Court shows that on 17.8.1985 and 27.10.1985, the bailiff attached to the Court of the Sub-Judge 1st Class, Dawali had gone to attach the property of the husband, but there was resistence and, therefore, he had to report that the attachment be made with the help of the police. It appears that during this period, the husband alienated his entire property and, therefore, Smt. Jass Kaur filed an application to a similar effect and requested for issuing of conditional warrant for imprisonment of the husband and the order was passed on 19.4.1986. The impugned order of the Judicial Magistrate also reveals that the distress warrant for attachment and sale of the property of the defaulter remained unexecuted due to reasons beyond the control of the Court. Thus, the order of imprisonment of the defaulter under. Section 125(3) of the Code appears to be well justifiable in the circumstances of the case.
...

Thus, the order of the Trial Court in sentencing the petitioner to imprisonment for one year and ten months is certainly illegal being violative of the above-referred mandate of the legislature contained in proviso (i) to Sub-section (3) of Section 125 of the Code. Consequently, the impugned order is partly set aside by accepting this petition to the extent that the petitioner would be liable to undergo imprisonment for one year only for arrears of maintenance allowance from 15.10.1983 to 14.10.1984.

Arrest for non-payment only within 1 year, but no time limit for recovery

Arrest for non-payment has time limitation CrPC 125(3), but no time limit for recovery under CrPC 128

CrPC 128 is another way for recovery of dues under CrPC 125. The bare act of CrPC 128 follows:

Section 128. Enforcement of order of maintenance

A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or as the case may be expenses, due.

Use this judgment when several facts in your case are similar to following\

  1. Warning: not paying ordered maintenance purely because of emotional reasons like teaching wife a lesson etc is risky and not a recommended thing in my techniques of fighting cases.

  2. Maintenance under CrPC 125 to wife has been ordered and you haven't paid

  3. Proceedings against you have been started under CrPC 128

P.Vaithi vs Kanagavalli and Tamil Selvai - Madras HC 2010

Important parts of judgment\

6. After an order is passed directing to pay maintenance, the party in whose favour such an order has been passed has got two options to work out to recover the arrears from the other. He can choose to approach the court under Section 125(3) Cr.P.C. requesting the court to punish the defaulter by imposing appropriate imprisonment. On the other hand, he can also approach the court under Section 128 of Cr.P.C. seeking to recover the amount due under the maintenance order. A comparison of Sections 125(3) and 128 of Cr.P.C. would keep things beyond any pale of doubt that in so far as the proceeding under Section 125(3) is concerned, the statuete has prescribed a period of limitation of one year, whereas in respect of a proceeding under Section 128 of Cr.P.C., there is no limitation provided at all. This is because, while exercising the power under Section 125(3) Cr.P.C. the action being essentially a criminal in nature, resulting in punishment of imprisonment, the legislature has perhaps, thought it fit to provide such a period of limitation of one year to file a petition. Since, while enforcing an order under Section 128 of Cr.P.C. for recovery of the amount, there is no question of straight away imposing such a punishment of imprisonment and that may be the reason for the legislature not to provide for such a period of limitation. Therefore, to put it in nutshell, for initiating a proceeding for enforcing an order by invoking Section 128 of Cr.P.C., absolutely, I find no provision providing for limitation as it is provided in respect of proceedings under Section 125(3) of Cr.P.C. In the case on hand, the petition was filed under Section 128 of Cr.P.C. Though it was filed beyond one year, in my considered opinion, the lower court was right in entertaining the same as the same is not barred by any limitation.

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