# Rakesh Kumar v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1436
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-09
- **Case number:** Matters Under Article 227 No. 8511 of 2019
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-v-state-of-u-p-anr-45502
- **Pages:** 4

## Headnote

A. Code of criminal procedure, 1973 -
Section
125
Cr.P.C

-
Order
for
maintenance
of
wives,
children
and
parents - Section 421 Cr.P.C - Warrant
for levy of fine - Issuance of nonbailable warrant by Magistrate against
petitioner
for
not
complying
order
directing
to
pay
maintenance
to
respondent-wife and daughter - Validity -
no
jurisdiction
-

illegal
and
not
warranted by law - order of issuance of
non-bailable warrant, set aside. (Para
12,13,14)

Magistrate has issued warrant of arrest
straightway against person liable for payment
of maintenance allowance in event of nonpayment of maintenance allowance within time
fixed by court. (Para-13)

Held:- Magistrate has no jurisdiction to issue
warrant of arrest straightway against person
liable for payment of maintenance allowance in
event
of
non-payment
of
maintenance
allowance within time fixed by court without
first levying amount due as fine and without
making any attempt for realization that fine in
one or both modes for recovery of that fine as
provided for in clauses (a) or (b) of sub-
Section (1) of Section 421 of Act . (Para-13)

Matters Under Article 227 allowed. (E- 7)

## Text

1436 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Therefore, under such facts and
circumstances, petition lacks merit and is,
accordingly, dismissed. No order as to
costs.
----------
(2020)02ILR A1436

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2020

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Matters Under Article 227 No. 8511 of 2019

Rakesh Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri S. Sengar

Counsel for the Respondents:
A.G.A.

A. Code of criminal procedure, 1973 -
Section
125
Cr.P.C

-
Order
for
maintenance
of
wives,
children
and
parents - Section 421 Cr.P.C - Warrant
for levy of fine - Issuance of nonbailable warrant by Magistrate against
petitioner
for
not
complying
order
directing
to
pay
maintenance
to
respondent-wife and daughter - Validity -
no
jurisdiction
-

illegal
and
not
warranted by law - order of issuance of
non-bailable warrant, set aside. (Para
12,13,14)

Magistrate has issued warrant of arrest
straightway against person liable for payment
of maintenance allowance in event of nonpayment of maintenance allowance within time
fixed by court. (Para-13)

Held:- Magistrate has no jurisdiction to issue
warrant of arrest straightway against person
liable for payment of maintenance allowance in
event
of
non-payment
of
maintenance
allowance within time fixed by court without
first levying amount due as fine and without
making any attempt for realization that fine in
one or both modes for recovery of that fine as
provided for in clauses (a) or (b) of sub-
Section (1) of Section 421 of Act . (Para-13)

Matters Under Article 227 allowed. (E- 7)

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. At the time of filing of the present
petition, certified copy of the impugned
order has not been annexed along with the
present petition.

2. Today, a supplementary affidavit
has been filed on behalf of the petitioner
enclosing certified copy of the order
impugned. The same is taken on record.

3. Heard Mr. S. Sengar, learned
counsel for the petitioner and the learned
A.G.A. for the State as also perused the
material on record.

4. Learned counsel for the petitioner
and the learned A.G.A for the State agree
that the present petition may be disposed
of at this stage without calling for counter
affidavit in view of the order proposed to
be passed today.

5. Normally this Court would have
issued notice to opposite party no.2 to
contest the matter by filing counter
affidavit either by herself or through
counsel, but no purpose would be served
by keeping the application pending.
However, it shall be open for opposite
party
no.2
to
file
an
appropriate
application, if she feels so aggrieved.

6. The present criminal revision has
been filed to quash the judgment and order
2 All. Rakesh Kumar Vs. State of U.P. & Anr.
1437
dated 20th September, 2019 passed by the
Principal Judge, Family Court, Auraiya in
consequential proceedings of Case No.
397 of 2013 (Subodhani @ Saloni &
Another Vs. Sukant @ Rakesh Kumar),
under Section 125 (3) Cr.P.C., whereby the
Principal Judge has issued non-bailable
warrant against the petitioner.

7. Learned counsel for the petitioner
submits
that
the
petitioner
married
opposite party no.2 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 i.e. petitioner and opposite party no.2
became
strained
and
incompatible.
Thereafter the opposite party no.2 has
initiated several litigations against the
petitioner. In connection with the same,
she along with her daughter filed an
application under Section 125 Cr.P.C.
before the Family Court, Auraiya, which
has been registered as Case No. 397 of
2013. The said application has been
allowed by the Principal Judge, Family
Court, Auraiya vide judgment and order
dated 8th January, 2019 and the petitioner
has been directed to pay Rs. 5,000/- per
month to his wife i.e. opposite party no.2,
namely, Subodhi @ Saloni and Rs. 7,000/-
per month to his daughter, namely, Kumari
Riya till the date of her majority as
maintenance allowance. Thereafter the
opposite party no.2 along with his
daughter instituted Misc. Case Nos. 130 of
2018, 107 of 2019 and 83 of 2019
(Subodhani @ Saloni & Another Vs.
Sukant @ Rakesh Kumar) under Section
125 (3) Cr.P.C. in the Court tof Principal
Judge, Family Court, Auraiya. After notice
being received, petitioner also filed his
objection under Section 125 (4) Cr.P.C. in
the aforesaid execution cases but the same
has been rejected by the Principal Judge
vide order dated 19th September, 2019 and
on the next date i.e. 20th September, 2019
has straight-way issued Non-Bailable
Warrant directing the petitioner to send
him in jail. It is against this order that the
present petition has been filed.

8.

Learned
counsel
for
the
petitioner submits that the impugned
order passed by the Principal Judge,
Family
Court, Auraiya
dated
20th
September, 2019 is wholly illegal as he
has no jurisdiction to issue non-bailable
warrant against the petitioner under
Section 125 (3) Cr.P.C. for execution of
his
order
awarding
maintenance
allowance to opposite party no.2 and his
daughter
Section
125
(3)
Cr.P.C.
specifically provides for issuance of a
warrant for levying the amount issued in
the manner provided for levying fines.
Learned counsel for the petitioner has
referred to Section 421 Cr.P.C., which
enacts the provisions regarding issuance
of warrant for levying of fine. Learned
counsel for the petitioner further submits
that when a specific procedure has been
provided for execution of the order of
maintenance
of
Family
Court,
the
issuance of Non-Bailable Warrant by the
Principal Judge, Family Court against
the petitioner is illegal and, therefore,
the impugned order is liable to be
quashed. In support of his aforesaid
submissions, learned counsel for the
petitioner has placed reliance upon the
following judgments of Gauhati High
Court, Calcutta High Court and Punjab
and 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
1438 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Om Prakash @ Parkash Vs.
Vidya Devi reported in 1992 CriLJ 658.

9. Per contra, Mr. Prashant
Kumar, learned A.G.A. for the State
has opposed the submissions made by
the learned counsel for the petitioner
by contending that that the applicant is
a defaulter and has not paid any
amount as awarded by the Family
Court under order dated 8th January,
2019 to opposite party no.2 and her
daughter
as
interim
allowance.
Therefore, the Family Court has rightly
passed the order issuing non-bailable
warrant
against
the
applicant
for
realization of the amount so due and
there is no error in the order impugned.

10.

I
have
considered
the
submissions made by the learned
counsel for the parties and have gone
through the records of the present
criminal revision.

11. 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.

......

(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
allowances 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.

.........."

"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-

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

(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: 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.

(2) The State Government may
make rules regulating 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.

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

12. On a plain reading of sub-section
(3) of Section 125 Cr.P.C., it is apparently
2 All. Padam Chandra Sahu & Anr. Vs. Smt. Suman Sahu & Ors.
1439
clear that in the event of any failure on the
part of any person to comply with an order
to pay maintenance allowance, without
sufficient
cause,
the
Magistrate
is
empowered to issue warrant for levying
the amount due to in manner provided for
levying fines for every breach of the order.
Section 421Cr.P.C. prescribes the manner
for levying fine and clause (a) of subSection (1) of Section 421 provides for
issuance of warrant for levy of the amount
by attachment and sale of any movable
property belonging to the offender. In
other words, in the event of any failure
without sufficient cause to comply with
the order for maintenance allowance, the
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. It is only after the
sentence of imprisonment is awarded by
the Magistrate under sub-section (3) of
Section 125 that the occasion may arise for
issuance of warrant of arrest for bringing
the person concerned to Court for his
committal to prison to serve out the
sentence.

13. It is further apparent that the
Magistrate has no jurisdiction to issue
warrant of arrest straight way against the
person liable for payment of maintenance
allowance in the event of non-payment of
maintenance allowance within the time
fixed by the court without first levying the
amount due as fine and without making
any attempt for reaslization that fine in one
or both the modes for recovery of that fine
as provided for in clauses (a) or (b) of subSection (1) of Section 421 Cr.P.C. say by
issuance of distress warrant for attachment
and sale of movable property belonging to
the defaulter as contemplated under
Section 421 (1) (a) and without first
sentencing the defaulter to imprisonment
after the execution of the distress warrant.

14. In view of aforesaid, this Court
finds that the Principal Judge, Family
Court, Auraiya, it is apparently clear, has
misdirected himself in providing for
issuance of warrant of arrest in default of
payment of arrears maintenance allowance
within the time allowed by him in the
execution case concerned. The order
directing issuance of warrant of arrest is
patently illegal and not warranted by law.
Order dated 20th September, 2019 is
hereby set aside. Let the Principal Judge
pass a fresh order in the aforesaid
execution cases filed by opposite party
no.2 in light of the observations made
herein above.

15. Subject to the observations made
above, the present petition is allowed.
----------
(2020)02ILR A1439

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2020

BEFORE
THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 9645 of 2019

Padam Chandra Sahu & Anr. ...Petitioners
Versus
Smt. Suman Sahu & Ors. ...Respondents

Counsel for the Petitioners: