Allowed

Jagdamba Trivedi v. Neha Trivedi

Chhattisgarh HC18 Jan 2021CRMP/1290/2019

Case brief

AI extract

What is this about?

In a writ petition, the High Court of Chhattisgarh held that the issuance of a non-bailable warrant for arrest under Section 125(3) CrPC is illegal if the mandated procedure under Section 421 CrPC for attachment and sale of property is not first followed.

What did the court decide?

Order dated 09/05/2019 directing issuance of non-bailable warrant was set aside; Family Court directed to follow Supreme Court directions for maintenance enforcement.

Jagdamba Trivedi Vs Neha Trivedi — Maintenance and Alimony | Chhattisgarh HC (2021)

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 1290 of 2019

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Jagdamba Trivedi S/o Shri Devideen Trivedi, Aged
about 30 years, R/o New Light Public School,
Bodla, Bhoramdev Road, Distt. Kawardha,
Chhattisgarh.

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 ---Petitioner

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 Versus

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Neha Trivedi W/o Shri Jagdamba Trivedi R/o
Rengakhar Road, Chiphi, District Kawardha
(Kabirdham) Chhattisgarh, at present R/o
Rajkishore Nagar, Chandan Awas, Tahsil Bilaspur,
District Bilaspur, Chhattisgarh.

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 --- Respondent

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For Petitioner :-Mr. Sangharsh Pandey, Advocate
For Respondent:-None

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Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board

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18/01/2021

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1.The petitioner herein has called in question the

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legality, validity and correctness of the order dated 09/05/2019 (Annexure A/1) passed by the Family Court, Bilaspur in MJC No. 43/2019 by which non-bailable warrant of arrest has been issued against him for non-payment of the arrears of maintenance amount ₹ 38,000/- awarded against

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him as well as the ex-parte order dated 22/11/2018 (Annexure A/2) passed by the Family Court in MJC No. 06/2018 granting maintenance to the tune of ₹ 7,000/- per month in favour of the respondent/his wife.

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2. It is the case of the petitioner that MJC No. 43/2019 was filed under Section 125(3) of the CrPC in which the petitioner herein appeared on 25/03/2019 and deposited an amount of ₹ 4,000/and thereafter, the matter was adjourned on

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18/04/2019 and again it was adjourned for
09/05/2019. Since, on that day, the petitioner
was absent, the respondent herein made a request
before the Family Court for issuance of warrant
of arrest against the petitioner herein and
ultimately, by the impugned order dated
09/05/2019 non-bailable warrant of arrest was
issued against the petitioner which is without
jurisdiction and without authority of law.

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3.Mr. Sangharsh Pandey, learned counsel for the
petitioner, would submit that learned Family
Court was absolutely unjustified in issuing non-
bailable warrant of arrest against the
petitioner. He would also submit that if the
order passed under Section 125(1) of the CrPC

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directing for payment of maintenance amount is
not complied with, then the procedure prescribed
under Section 125(3) has to be followed and for
the breach of that order, the concerned Court may
issue a warrant for levying the amount due in the
manner prescribed for levying fines, and may

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sentence such person, for the whole, or any part
of each month's allowance (allowance for the
maintenance or the interim maintenance and
expenses of proceeding, as the case may be)
remaining unpaid after the execution of the
warrant, to imprisonment for a term which may
extend to one month or until payment if sooner
made, and that the warrant for levy of fine has
been provided under Section 421 of CrPC and
without following the procedure mentioned in

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Section 421 of CrPC, learned Family Court could
not have issued the warrant of arrest directly as
the provisions prescribed under Section 421 of

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CrPC are mandatory in nature which was not
followed by learned Family Court, as such, the
impugned order dated 09/05/2019 (Annexure A/1)
and 22/11/2018 (Annexure A/2) deserve to be set
aside.

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4.None appeared for the respondent though served.

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5. I have heard learned counsel for the petitioner, considered his submission and went through the record with utmost circumspection.

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6. It is true that the petitioner has suffered the ex-parte order of maintenance dated 22/11/2018 passed by learned Family Court in MJC No. 06/2018 for execution of which MJC No. 43/2019 was filed

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by the respondent for recovery of arrears of maintenance amount of ₹ 38,000/- wherein on 09/05/2019, learned Family Court has issued nonbailable warrant of arrest against the petitioner.

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7. Section 125(3) of CrPC provides for the procedure

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to be followed for non-compliance of the order
passed under Section 125(1) of CrPC for grant of
maintenance, which states as under :-

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“125. Order for maintenance of wives,
children and parents. - (1) XXX XXX

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(2) XXX XXX XXX

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(3) If any person so ordered fails without
sufficient cause to comply with the order,
any such Magistrate may, for every breach
of the order, issue a warrant for levying
the amount due in the manner provided for
levying fines, and may sentence such
person, for the whole, or any part of each
month's (allowance for the maintenance or
the interim maintenance and expenses of
proceeding, as the case may be,) remaining
unpaid after the execution of the warrant,
to imprisonment for a term which may extend

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to one month or until payment if sooner
made.

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Provided that no warrant shall be issued
for the recovery of any amount due under
this section unless application be made to
the Court to levy such amount within a
period of one year from the date on which
it became due :

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Provided further that is such person
offers to maintain his wife on condition of
her living with him, and she refuses to
live with him, such Magistrate may consider
any grounds of refusal stated by her, and
may make an order under this section
notwithstanding such offer, if he is
satisfied that there is just ground for
doing so.”

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8.A plain reading of the aforesaid provision would

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show that if the order has been passed with
regard to the grant of maintenance against a
person and he fails to comply without sufficient
cause, the Magistrate is empowered to issue
warrant for levying the amount due in the manner
provided for levying fine and may sentence such
person for whole or any part of each month's
allowance (allowance for the maintenance or the
interim maintenance and expenses of proceeding,
as the case may be) remaining unpaid after the
execution of the warrant, to imprisonment for a
term which may extend to one month or until
payment if sooner made.

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9. Section 421 of CrPC provides the procedure for levy of fine which states as under :-

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“421. Warrant for levy of fine. - (1) When
an offender has been sentenced to pay a
fine, the Court passing the sentence may
take action for the recovery of the fine
in either or both of the following ways,
that is to say, it may -

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(a) issue a warrant for the levy of the
amount by attachment and sale of any
moveable property belonging to the
offender;

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(b) issue a warrant to the Collector of
the district, authorising him to realise
the amount as arrears of land revenue from
the movable or immovable property, or
both, of the defaulter:

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Provided that, if the sentence directs
that in default of payment of the fine,
the offender shall be imprisoned, and if
such offender has undergone the whole of
such imprisonment in default, no Court
shall issue such warrant unless, for
special reasons to be recorded in writing,
it considers it necessary so to do, or
unless it has made an order for the
payment of expenses or compensation out of
the fine under Section 357.

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(2) The State Government may make rules
relegating the manner in which warrants
under clause (a) of sub-section (1) are to
be executed, and for the summary
determination of any claims made by any
person other than the offender in respect
of any property attached in execution of
such warrant.

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(3). Where the Court issues a warrant to
the Collector under clause (b) of sub-
section (1), the Collector shall realise
the amount in accordance with the law
relating to recovery of arrears of land
revenue, as if such warrant were a
certificate issued under such law :

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Provided that no such warrant shall be
executed by the arrest or detention in
prison of the offender.”

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10.A careful perusal of the aforesaid provision
would show that for recovery of the amount of
maintenance, procedure under Section 421(1) has
to be followed by either issuing warrant for
levying the amount due by attachment and sale of
movable property belonging to the offender or by
issuing a warrant to the Collector of the
district, for authorising him to realise the
amount as arrears of land revenue from the
movable or immovable property, or both, of the
defaulter. Section 421(3) provides that where the
Court issues a warrant to the Collector under
clause (b) of Sub-section (1), the Collector
shall realise the amount in accordance with the
law relating to recovery of arrears of land
revenue, as if such warrant were a certificate
issued under such law.

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11.A conjoint reading of the provisions contained
under Section 125(3) read with Section 421 of
CrPC would show that by virtue of Section 125(3)
of CrPC, the Magistrate has been empowered to
recover the amount of arrears of maintenance by
following the procedure prescribed for levy of

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fine under Section 421 of CrPC. Two modes are
prescribed under Section 421 of CrPC for recovery

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of the arrears of maintenance due as if it were a
fine levied. The Court can either issue a warrant
for the levy of the amount by attachment and sale
of any movable property belonging to the
defaulter or issue a warrant to the Collector of
the District, authorising him to realise the
amount as arrears of land revenue from the
movable or immovable property, or both, of the
defaulter under Section 421(1)(a) and 421(1)(b)
of CrPC. It is only after the Magistrate has
exhausted the two modes prescribed under Section
421 of CrPC and still fails to recover the
arrears of maintenance due that he can sentence
the person who committed the default to
imprisonment as enjoined under Section 125(3) of
CrPC for the period prescribed in the above-

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stated provision and if in the execution of
sentence of imprisonment so awarded, the
defaulter does not appear to suffer, the sentence
so awarded, the Court should at the first
instance issue summons/notice for his appearance
and if the defaulter seems to be avoiding the
summons, the Court in the second instance should
issue bailable warrant for his appearance to
undergo sentence. The Courts, at first and second

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instance, shall refrain from issuing non-bailable
warrant.

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12.It is quite vivid that the provisions contained
under Section 125(3) of CrPC itself provide that
the Court may sentence such a person for whole or
any part of each month's allowance after the
execution of the warrant, as such, Section 125(3)
CrPC speaks only of issue of a warrant for
levying the amount in the manner provided for
levying fines and does not speak of a warrant of
arrest. The issue of a warrant for levy of the
amount due by way of attachment and sale is a
condition precedent to the sentencing of the
defaulter to imprisonment. As such, without
following the procedure prescribed under Section
421(1)(a) and 421(1)(b) of CrPC and without
issuance of warrant of attachment and sale, no

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warrant can be issued and no order for
imprisonment can be passed under Section 125(3)
of CrPC.

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13.In the matter of Jagannath Patra v. Purnamashi
Saraf1, it was held that in the first instance

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the warrant of attachment of movable and

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immovable properties would be issued, the

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1 AIR 1968 Orissa 35

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properties would be sold and applied for
discharge of the arrear due, and if on such steps
being taken the arrear amount still remains
unpaid, it is open to the Magistrate to issue a
body warrant and not until then. The order of the
Magistrate issuing simultaneously warrant of
attachment and body warrant is not in accordance
with law.

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14.The Kerala High Court in the matter of
Nithiyanandan v. Radhamani2 has clearly held that
the powers conferred on the Magistrate in this
regard have to be exercised in the manner and in
the sequence indicated in sub-section (3) of
Section 125 of the Code.

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15. The Punjab and Haryana High Court in the matter of Karnail Singh v. Gurdial Kaur 3 while

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considering the similar provision contained in
the old Code i.e. Section 488(3) of CrPC, 1898,
held that in the first instance warrant of
attachment of property to satisfy the demand of
arrears should issue and only if the whole or any
part of it remains unpaid after execution of
warrant, imprisonment can be ordered. Therefore,

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the issue of a warrant of attachment and sale is

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2 1980 SCC Online Ker 93

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3 1974 CrLJ 38

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a condition precedent to the issue of a warrant
of imprisonment.

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16.Finally, in the matter of Rajnesh v. Neha4, the
Supreme Court considered the issue as to the
enforcement of orders of maintenance in paragraph

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80 and held as under :-

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“ V.Enforcement of orders of maintenance :-

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80. Enforcement of the order of maintenance
is the most challenging issue, which is
encounteredbytheapplicants.If
maintenance is not paid in a timely manner,
it defeats the very object of social welfare
legislation. Execution petitions usually
remain pending for months, if not years,
which completely nullifies the object of the
law.

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XXX XXX XXX XXX

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Discussion and Directions on Enforcement of Orders of Maintenance :-

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- The order or decree of maintenance may be
enforced like a decree of a civil court,
through the provisions which are available
for enforcing a money decree, including
civil detention, attachment of property,
etc. as provided by various provisions of
the CPC, more particularly Sections 51, 55,
58, 60 read with Order XXI.

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- Striking off the defence of the respondent
is an order which ought to be passed in the
last resort, if the Courts find default to
be wilful and contumacious, particularly to
a dependant unemployed wife, and minor
children.

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-Contemptproceedingsforwilful
disobedience may be initiated before the
appropriate Court.

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VI. Final Directions :-

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4 2020 SCC Online SC 903

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81. In view of the foregoing discussion as
contained in Part B – I to V of this
judgment, we deem it appropriate to pass the
following directions in exercise of our
powers under Article 142of the Constitution
of India :

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(a) XXX XXX XXX
(b) XXX XXX XXX
(c) XXX XXX XXX
(d) XXX XXX XXX

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(e) Enforcement / Execution of orders of
maintenance For enforcement / execution of
orders of maintenance, it is directed that
an order or decree of maintenance may be
enforced under Section 28A of the Hindu
Marriage Act, 1956; Section 20(6) of the
D.V. Act; and Section 128 of Cr.P.C., as may
be applicable. The order of maintenance may
be enforced as a money decree of a civil
court as per the provisions of the CPC, more
particularly Sections 51, 55, 58, 60 r.w.
Order XXI.”

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17.Reverting to the facts of the instant case in

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light of the aforesaid legal analysis, it is
quite vivid that learned Family Court, finding

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that the arrears of maintenance is due from the
petitioner, straightway issued warrant of arrest

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without following the procedure laid down in
Section 421(1)(a) and 421(1)(b) of CrPC, whereas
learned Magistrate ought to have followed the
procedure laid down in Section 421 of CrPC for
recovering the arrears of the amount of
maintenance, and if after following the procedure
as envisaged in Section 421 of CrPC by issuance
of warrant of attachment of movable and immovable

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property of the defaulter and sale thereof; still
arrears of amount of maintenance remains due, th
order of imprisonment can be passed, as such, the
order directing issuance of non-bailable warrant
of arrest against the petitioner is contrary to
Section 125(3) read with Sections 421(1)(a) and
421(1)(b) of the CrPC. Accordingly, the order
dated 09/05/2019 (Annexure A/1) passed in MJC No.
43/2019 is hereby set aside and learned Family
Court is directed to follow the procedure laid
down by the Supreme Court in the matter of
Rajnesh(supra) strictly for recovery of the
amount of maintenance.

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18.The petitioner has also called in question the
order dated 22/11/2018 (Annexure A/2) passed in
MJC No. 06/2018 by which ex-parte order of
maintenance has been passed by the Family Court
against the petitioner. This Court would not like
to directly entertain the petition with regard to
setting aside of the said order (Annexure A/2).
However, the petitioner is at liberty to move
appropriate application before the Family Court
which will be considered by that Court
expeditiously and in accordance with law.

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19.With the aforesaid direction/observation, the

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instant petition under Section 482 of CrPC stands

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disposed of. No cost(s).

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Sd/-
(Sanjay K. Agrawal)
Judge

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Harneet

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HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 1290 of 2019

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Petitioner

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Jagdamba Trivedi

Versus

Respondents

Neha Trivedi

(English)

Under Section 125(3) of CrPC, for recovery
of arrears of maintenance, at the first
instance, warrant of attachment of movable
and immovable property should be issued and
the sale proceeds should be applied for
payment of arrears and if the amount of
maintenance still remains unpaid, then only
sentence of imprisonment is to be passed.

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(Hindi)

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दडपककययस द द हहतयककधयरय 125(3) क क अधधनभरण पपषणक क बकयययकक वस स लधहत क , सव र पथम , चलतथयअचलस द पहतककक त करकयवयर द टजयरधककययजयनय चयहहएऔरबकयययरयहशक क भ त गतयनहत क त हवकयकककयय र वयहधपयरमभककजयनध चयहहएऔरइसक क बयदभधयकदभरण-पपषणककरयहशश क षरहजयय , क क वलऐसध हसथहतम म कयरयवयसकयदणडयदशपयररतककययजयएगय क |

Jagdamba Trivedi v. Neha Trivedi

Case brief

What is this about?

What did the court decide?

Jagdamba Trivedi v. Neha Trivedi

Case brief

What is this about?

What did the court decide?

What the court decided

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