Lalit Mohan Sharma vs State Of Jharkhand And Others

Sanjay Kumar Dwivedi, J

Heard Mr. Nikhil Ranjan, the learned counsel appearing for the petitioner and Mr.Abhijeet Kumar Singh, the learned counsel appearing on behalf of the O.P.No.2.

In this application, the petitioner has prayed for quashing of the order dated 11.09.2020 passed by the learned Principal Judge, Family Court, Ranchi in Original Maintenance Case No.192/2019 whereby and whereunder the learned court below had issued Distress Warrant against the petitioner for realization of the amount of maintenance.

It has been submitted by the learned counsel for the petitioner that on an application filed by the opposite party no.2 under section 125 of the Code of Criminal Procedure an order was passed on 06.12.2019 granting maintenance allowance of Rs.64,000/- to the opposite party no.2. It has further been submitted that the opposite party no.2 had filed a petition in the court of learned Principal Judge, Family court, Ranchi in Original Maintenance Case No.192 of 2019 for realization of the maintenance amount. Without issuing any show cause notice upon the petitioner an order was passed on 11.09.2020 by issuing distress warrant for realization of the maintenance amount.

This is a case where maintenance has not been paid to the wife. The husband or the father is duty bound to maintain his wife and children. On a petition filed by the petitioner, the learned trial court shall proceed expeditiously as inspite of the order of maintenance, the same has not been paid to the wife.

After hearing the parties and after going through the records, I find that section 125(3) of the Code of Criminal Procedure clearly lays down that if any person so ordered fails without sufficient cause to comply with the order, in such circumstances, for every breach of the order the court may issue a warrant for levying amount due in the manner provided for and proviso speaks of filing an application is a condition precedent for issuing the warrant. Thus, petition under section 125(3) of Code of Criminal Procedure for such order is a condition precedent. The counsel for O.P.no.2 admitted that petition was not filed. In such circumstance the order dated 11.09.2020 is not sustainable in the eye of law.

Accordingly, the order dated 11.09.2020 is quashed and the matter is remanded back to the learned court below to pass a fresh order in accordance with law. The O.P.No.2 is at liberty to file petition under section 125(3) of Code of Criminal Procedure.

This application [Cr.M.P.No.1899 of 2021] stands allowed with the aforementioned observations.