Udami Ram vs Geeta and Others

Sandeep Mehta, J.—Heard Learned counsel for the parties. The present misc. petition has been filed by the petitioners challenging the order dated 15.1.2008 passed by the Additional Chief Judicial Magistrate, Nohar in Criminal Misc, case No. 102/2007 whereby he has issued warrant of attachment cum warrant of arrest for recovery of maintenance amount of Rs. 48,000/-awarded in favour of the respondents. Assailing the order impugned, learned counsel for the petitioner has submitted that the order of maintenance was passed on 12.12.2000 and a total sum of Rs. 1,000/- as maintenance allowance was ordered to be paid to the wife and four children of the petitioner. It has been submitted that the respondents filed application in the year 2001 and then in the year 2007 for recovering the maintenance allowance and the learned Magistrate by order dated 15.1.2008 issued attachment order to recover Rs. 48,000/- from the petitioner.

Counsel for the petitioner has further submitted that no attachment for the period of maintenance due beyond a period of one year could be passed in view of Section 128 Cr.P.C. It is further submitted that attachment for the period beyond one year was uncalled for.

I have considered the arguments advanced at bar and have also perused the impugned order. Suffice it to say that the fact is that the application for recovery of maintenance arrears was filed by the wife and four children in the year 2001 itself. In such circumstances, the learned Magistrate was perfectly justified in directing the issuance of warrant of arrest and attachment against the petitioner for recovery of maintenance allowance.

Furthermore, the Hon''ble Apex Court in its judgment rendered in the case of Shantha @ Ushadevi and Another Vs. B.G. Shivananjappa, has held that where the application for Issuance of warrant is filed within the stipulated period of one year, then the subsequent application filed in the same proceedings cannot be barred by limitation. As such, the learned Magistrate was not at all at fault in issuing warrant of arrest and attachment against the petitioner for recovery of arrears of maintenance.

It may be mentioned here that the proceedings u/s 125 Cr.P.C. are meant for providing maintenance to the neglected claimants, be it be wife, children or parents. It is seen that with great difficulty and delays, the applications come to be decided and if after the decision of the application u/s 125 Cr.P.C., the person in whose favour the order of maintenance has been made, is again made to go through the ordeal of having the recovery effected by the same lengthy process, then the very purpose of the proceedings is set at naught. Time has come when the payment of maintenance allowance should be the burden of the person against whom the order has been passed. The order to pay maintenance should not become a toothless tiger that the enforcement thereof again becomes a pain for the person entitled to maintenance.

Time has come when, by a way of a proper amendment in section 125 Cr.P.C., It should be directed that once the order of maintenance has been passed and it has become final, then it should be the burden of the person against whom the maintenance order has been made to deposit the amount of maintenance on a fixed date of every month and if such a deposit is not made, then it is the court who should see that the order of maintenance is enforced by passing appropriate orders of attachment etc. The neglected claimants should not be left to the mercy of the person who is under a legal obligation to make payment by filing applications and then again having the process served upon the person liable to make payment.

The Hon''ble Apex court had an occasion to deal with such a situation in its judgment rendered in the case of Kuldip Kaur Vs. Surinder Singh and Another, wherein this Hon''ble Apex court held as under :-

we direct that Respondent No. 1, Surinder Singh shall pay Rs. 275 (Rs. 200 for the wife And Rs. 75 for the child as and by way of maintenance to the appellant, Kuldip Kaur commencing from August, 15, 1986. The amount of Rs. 275 shall be paid by the 15th of every succeeding month, on failure to pay any monthly allowance for any month hereafter on the part of respondent No. 1, Surinder Singh, the learned Metropolitan Magistrate shall issue a warrant for his arrest, cause him to be arrested and put in jail for his failure to comply with this court''s order and he shall not be released, till he makes the payment.

Thus, the Hon''ble Apex Court also was of the view, that the neglected wife and children should not be left the mercy of the procedure for recovery of amount of maintenance by filing repeated applications.

The upshot of the aforesaid discussion is that this misc, petition fails and is hereby dismissed. The petitioner is directed to make payment of arrears of maintenance to his wife and children. In the event of petitioner not making payment, the petitioner shall be sent to jail and recovery proceedings be also initiated in accordance with law by making attachment of the property of the petitioner and the petitioner shall be kept in jail till the complete amount of maintenance is recovered. Stay petition also stands dismissed.