Avtar Singh vs Smt. Kamlesh and Others

G.S. Chahal, J.—Smt. Shila respondent, for herself and as natural guardian and mother of her 4 minor children, brought proceedings u/s 125 of the Code of Criminal Procedure against Avtar Singh petitioner, her husband. The learned Judicial Magistrate 1st Class, Patiala, vide his order dated 27.9.1989 allowed this application and granted maintenance. Revision was filed and the learned Additional Sessions Judge, Patiala, vide his order dated 12.10.1989, granted partial stay of payment of maintenance. The order is reproduced as follows :

"12.10.1989 : Present counsel for the petitioner. Received by entrustment. Be registered, Heard. Admitted. Notice to the respondents. On P.F. Lower Court record be summoned for 10.1.1990. Till then recovery of arrears is stayed. But the petitioner shall be going on deposit the future arrears by 7th of succeeding month.

Sd/- H.S. Mander, Addl. Session Judge, Patiala"

The petitioner did not comply with this order and faild to make payments, as directed by the learned Additional Sessions Judge. On 11.6.1990 the respondents 1 to 5 filed an application u/s 128 Cr.P.C. for enforcement of the order of maintenance-dated 27.9.1939. On 14.7.1990, Shri C.D. Jindal Judicial Magistrate 1st Class passed the order, Annexure A-3 which shows that the petitioner sought adjournment after adjournment through his counsel but did not appear in the Court to make the payment. The learned Magistrate recorded a finding that the petitioner docs not own any property and also not personally appearing and as such he had not option but to issue conditional warrant of his arrest.

In the present criminal miscellaneous petition this order is being challenged. A reference to the order dated 8.8.1990 passed by this Court shows that the operation of the impugned order has been stated subject to the condition that the petitioner would deposit l/3rd of the arrears of maintenance already having become due within a fortnight. It is conceded at the bar that this order has been complied with. Since the order of the Magistrate was only conditional and the amount has been deposited, not only with respect to l/3rd of what had fallen due after the date the stay order was granted by the learned Additional Sessions Judge but also the entire arrears of maintenance the recovery of any further amount cannot be effected.

The academic question, whether the warrant of arrears should have been issued or not, need not be decided in the present petition for the simple reason that the same is not to be enforced now. I thus set aside the impugned order relating to the issue of warrants.

Provisions of Section 125 of the Cr.P.C. were introduced by the Legislature to save destitute wives and children from vagrancy. This fact should be kept in mind by the Courts and the proceedings should be decided with promptness. I, thus, issue a direction to the learned Additional Sessions Judge to decide the revision petition within two months from today. This criminal miscellaneous stands disposed of accordingly.