Gurmit Singh vs Gurdev Kaur

T.H.B. Chalapathi, J.

This revision petition is filed against the orders of SubDivisional Judicial Magistrate, Phul, issuing warrants of arrest for recovery of maintenance awarded to the respondents against the petitioner.

The first respondent is the wife of the petitioner and respondents 2 and 3 are their daughters. The respondents filed an application for maintenance under Section 125 Cr.P.C. On the said application, a sum of Rs. 100/ per month was awarded by an order dated 22.7.1980. Thereafter, the respondents filed an application U/s 127 Cr.P.C. for enhancement of the maintenance and the amount of maintenance was enhanced to Rs. 300/ per month in respect of the wife and Rs. 250/ each in respect of the daughters. Thereafter, as the petitioner committed default in payment of maintenance, the respondents filed an execution application. The learned Magistrate directed the property of the petitioner to be attached and the same was attached and date of sale was also fixed. But the sale was being postponed from time to time and the petitioner was paying some amount from time to time. Thereafter, the learned magistrate passed on order dated 5.2.1994 directing the issue of warrants of arrest. Aggrieved by the same, the petitioner filed the present revision petition.

The learned counsel for the petitioner contended that the Magistrate has no powers to issue warrants of arrest when the property is under attachment. He also contended that his application to cancel the order of maintenance in respect of his daughters on the ground that they have become majors, is still pending before the magistrate and without deciding the same, the magistrate has issued warrants of arrest and therefore, the order of the learned Magistrate dated 5.2.1994, is liable to be setaside.

There is no dispute that respondent No. 1 is the wife of the petitioner and respondents 2 and 3 are their daughters. There is also no dispute that petitioner was directed to pay maintenance to the respondents under section 125 Cr.P.C. There is also no dispute that certain amount remains unpaid and the petitioner is liable to pay the arrears of maintenance. The only grievance of the petitioner seems to be that his application for cancellation of the orders of maintenance in respect of the daughter on the ground that they have become majors, is still pending and his property was attached and as the same is ordered to be sold, he cannot be arrested for recovery of arrears of maintenance without proceeding against his property by putting to sale. The learned Magistrate has not passed a detailed order on 5.2.1994. He simply stated as follows :

"Payment not made. As such conditional warrants of arrest be issued as earlier ordered for 5.3.1994."

As there is no speaking order in respect of the points raised by the counsel for the petitioner in this revision petition, I feel that it is just and proper to setaside the order of the learned Magistrate issuing warrants of arrest and direct the magistrate to consider all the points raised by the petitioner in a detailed and speaking order. I accordingly setaside the order of warrants of arrest and direct the magistrate to dispose of the objections of the petitioner in accordance with law. I direct the parties to appear before the learned magistrate on 16.3.1995.

JUDGMENT accordingly.