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No some-more than one Month apprehension for Pending Maintenance arrears

IN THE HIGH COURT OF JUDICATURE AT PATNA

CR. WJC No.810 of 2010

MANOJ KUMAR PATEL @ MANOJ PATEL SON OF JOKHI PATEL, RESIDENT OF MOHALLA NONIA TOLA, CHAKKI
PAKRI, P.S. SHIKARPUR, DISTRICT-WEST CHAMPARAN,BETTIAH——PETITIONER .

Versus

1. STATE OF BIHAR THROUGH HOME SECRETARY,BIHAR, PATNA.

MUNITA DEVI WIFE OF MANOJ KUMAR PATEL, D/O MADAN PD. PATEL
RAMBABU @ SONI SHYAM KISHORE, BOTH SONS OF MANOJ KUMAR
PATEL ALL ARE RESIDENTS OF SAGAR POKHARA, P.S.BETTIAH TOWN, DISTRICT-WEST CHAMPARAN—–RESPONDENTS..

For a petitioner:- Mr. R.S.Sahay Mr. J.J.Sahay,Advs.
For a State:- Mr. Kaushal Kishore Jha, SC-

Petitioner is a father of Respondent no.2 Munita Devi and father of respondent Nos. 3 and 4. Respondent no.2 and her children, respondent nos. 3 and 4 were forlorn by a petitioner; as such she filed a petition underneath Section 125 of a Code of Criminal Procedure for upkeep of herself as good as her dual children, from a petitioner. The box was purebred as Maintenance box No. 308M/2005 and listened by Principal Judge, Family Court, West Champaran, Bettiah. The case, on competition was motionless in foster of respondent nos. 2 to 4 and vide sequence antiquated 16.12.2009 a postulant was destined to compensate upkeep of Rs. 1000/- Per month to all 3 (respondent nos. 2 to 4) from a date of filing of upkeep box i.e. 27.9.2005. The sequence upheld by a Family Court extenuation upkeep in foster of respondent nos. 2 to 4 was challenged by a postulant by filing Criminal Revision No. 248 of 2010 that is still tentative in a High Court. However, notwithstanding a fact that there was no stay sequence upheld in foster of a petitioner, he did not compensate a singular penny to his legally married mother and children. He has also filed matrimonial fit (Divorce No. 188 of 2007) that is tentative for adjudication. Since a monthly upkeep volume was not being paid to a respondents, as such respondent no.2 filed a petition before a Principal Judge, Family Court, West Champaran, Bettiah in sequence to get a upkeep sequence complied. Notice was expelled to a postulant to uncover cause, as such he seemed before a Court and done a request for staying a operation of a sequence upheld in a upkeep box or for a instruction that a petition be deliberate along with matrimonial divorce case.

On examination of a order-sheet of a upkeep box No. 308M/2005, it transpires that in response to uncover means notice, a postulant seemed before a Principle Judge, Family Court, West Chmparan and on 20.4.2010 a postulant as good respondents were heard. One months time was authorised to a postulant possibly to move stay sequence or to make remuneration of whole balance volume as good as month to month upkeep volume to a respondents. On 22.5.2010, when again a matter was taken up, both a parties were heard. Since, no stay sequence could be performed by a postulant from a High Court, as such a postulant was asked to deposition a whole balance of upkeep amounting to Rs. 1,65,000/-. Petitioner showed his hostility in creation payment, as such aver of detain was expelled opposite a postulant and in difference of it he was taken into custody. The matter was again destined to be listed on 5.6.2010. On 22.5.2010 postulant has filed a petitio for staying a operation of sequence antiquated 16.12.2009, upheld in upkeep box permitting upkeep in foster of respondents, though that was deserted and an sequence for holding a postulant into control was upheld as supposing underneath Section 125(3) of a Code of Criminal Procedure. On 2.6.2010 again a matter was taken adult and a petition filed by a postulant severe a sequence holding into control was taken adult for consideration. Petitioner had challenged a sequence saying that he could not have been systematic to be incarcerated but holding chance to a procession for liberation of excellent as supposing underneath Section 421 of a Code of Criminal Procedure. There should have been a correct sequence of sentencing, before holding him in custody. However, a Principal Judge, Family Court, West Champaran, Bettiah, deserted a defence taken by a postulant saying that Section 125(3) of a Code of Criminal Procedure in itself is a finish sustenance that provides that in box of disaster to approve with a sequence for remuneration of upkeep volume aver of detain can be issued, compartment a fulfilment of a amount. There is no prerequisite to follow a procession supposing for levying fines. The chairman might be condemned for a whole or any partial of any month?s non remuneration of upkeep volume in execution of a warrant. For delinquent upkeep volume a chairman endangered might be incarcerated for a tenure of one month or until remuneration is progressing made. Only compulsory for distribution of aver for a liberation of any volume due underneath this territory is that there contingency be an focus filed by a depressed mother / children before a justice for fulfilment of such volume within a duration of one year from a date on that it became due. The Court if confident that there is usually belligerent for not creation remuneration of such volume was on filing such application, no aver can be issued. Since, there was no belligerent accessible in foster of a postulant and he refused to make remuneration a upkeep volume but there being any reasonable belligerent for it, a sustenance underneath Section 125(3) was applicable. Section 125 (3) Cr.P.C. provides office to a justice for distribution of aver of detain and for holding into control in execution of it.

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Counsel appearing for a postulant submits that on elementary reading of a sustenance underneath Section 125(3) Cr.P.C., it is apparent that before distribution of aver of detain or holding a defaulter into custody, he should be given correct event to uncover a reason for non-payment and usually in box a Court is confident that but any apparent reason a instruction of a Court has been flouted, any sequence per distribution of aver of detain could have been passed. The duration of seizure in any box could not have been exceeded over one month as for any duration of default; there should have been uninformed focus and uninformed sequence of control for a delinquent upkeep volume for any month. In this courtesy a warn for a postulant placed faith on a preference reported in a box of Ashok Prasad Vs. State of Bihar (2000 (1) PLJR 578) and also in a box of Shahada Khatoon and others vs. Amjad Ali and others (1999 (5) SCC 672). However on examination of a impugned order, it transpires that a Court next has placed faith on a preference of a Apex Court reported in a box of Kuldip Kaur vs. Surinder Singh (AIR 1989 SC 232), wherein it has been hold that a chairman can't be expelled from a control compartment he creates a payment.

In a preference reported in (1999) 5 SCC 672, a brief doubt that arose for care was either a singular Judge of Patna High Court has rightly interpreted a sustenance underneath sub-section (3) of Section 125 Cr.P.C., by directing a Magistrate that he can usually judgment for a duration of one month or until payment, if progressing made. The Apex Court hold that a denunciation of sub-section (3) of Section 125 Cr.P.C. is utterly transparent and it circumscribes a energy of a Magistrate to levy seizure for a tenure that might extend to one month or until a payment, if progressing made. This energy of a Magistrate can't be lengthened and therefore a usually pill would be after expiry of one month. For crack of non-compliance with a sequence of a Magistrate a mother can proceed a Magistrate again for matching relief. By no widen of imagination can a Magistrate be available to levy judgment for some-more than one month. In that perspective of a matter, a High Court was entirely fit in flitting a impugned sequence and we see no feebleness in a pronounced sequence to be interfered with by this Court.

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Counsel for a postulant fixation faith on a preference of Division Bench of Patna High has submitted that a sustenance of sub-section (3) of Section 125 Cr.P.C. has been deliberate in a reported preference 2000 (1) PLJR 578. The contribution in a reported preference were matching to a contribution of a benefaction case. Petitioner of that box had also filed a petition for his recover and for holding that his apprehension in a control is illegal. The petitioner- father had been arrested on 7.8.1995 in execution of aver of detain expelled on 1.8.1995 by a Judicial Magistrate for default in remuneration of upkeep volume and its? arrears. Since then, after any 14 days he was being remanded to authorised control and invariably for 3 and half years he was in custody, a Division Bench while interpreting a office of a Court underneath Section 125(3) Cr.P.C. hold as follows:-

” From a reading of Section 125(3) Cr. P.C. it is transparent that if any chairman who has been systematic to compensate upkeep underneath territory 125(1) Cr.P.C. fails but sufficient means to approve with a order, a Magistrate might take such stairs for fulfilment of volume that are supposing for levying fines and after execution of trouble aver it is found that any volume has remained delinquent a Magistrate might judgment such chairman for a whole or any partial of any month?s stipend remaining delinquent to seizure for a tenure that might extend to one month or until payment, if progressing made. So it is transparent that a Magistrate has initial to prove that a sequence has not been complied by a chairman but sufficient means and if he finds that there is disaster of a correspondence of a sequence but sufficient means he will emanate a trouble aver for levying a volume due for any crack of a sequence in a demeanour supposing for levying fines. It is serve supposing that after execution of trouble aver if a Magistrate finds that any volume has remained delinquent he might judgment such chairman for a whole or partial of any month?s stipend remaining delinquent to seizure for a tenure that might extend to one month or until remuneration whichever is earlier. The demeanour supposing for levying fines is prescribed underneath territory 421 Cr.P.C. So, dual conditions before sentencing a chairman to seizure for non-payment of upkeep stipend are required. First a Magistrate contingency be confident that a chairman but any sufficient means is not profitable a upkeep and violating a sequence and secondly to emanate aver for levying a volume due in a demeanour supposing for levying fines and after a execution to discern a volume that has remained unpaid. If any volume is found to have remained delinquent a Magistrate might judgment such persons to seizure for a duration of one month for a whole or any partial of any month?s stipend remaining unpaid. In other words, if after distribution of aver for levying a volume due in a demeanour supposing for levying excellent it is found that no volume has remained due, a doubt of sentencing a persons to seizure does not arise. So a Magistrate, has to see a outcome of execution of aver expelled for levying volume due.”

We find that a Court next has placed faith on a preference reported in a box of Smt. Kuldip Kaur Vs. Surendra Singh and another ( AIR 1989 SC 232). But a doubt for care before a Apex Court in a matter was whether, in box of chairman refusing to approve a sequence of a Court to say his neglected mother or children, but reasonable cause, will be excluded of his liability, merely given he prefers to go to jail. Considering any aspect of a supplies underneath Sub-section (3) of Section 125 Cr.P.C., it was hold that sentencing a chairman to jail is „mode of enforcement? and not „mode of satisfaction?. The guilt can be confident usually by creation tangible remuneration of arrears. The Supreme Court destined a delinquent father be put in jail compartment he creates a remuneration of upkeep allowance. However, there is no anticipating either this duration can be usually one month or some-more than one month.

On a other hand, warn appearing for a State has lifted conflict per maintainability of a focus of habeous corpus severe legality of a detention, saying that given a postulant is incarcerated in jail for flouting a sequence of a Court underneath Section 125(3) Cr.P.C. and there is a sustenance for distribution of aver of detain underneath sub-section 3 of Section 125 Cr.P.C. for distribution of aver of detain and holding into custody, due to non-payment of balance as good as monthly upkeep amount, a apprehension can't be deliberate as bootleg apprehension and command of habeous corpus is not maintainable.

Counsel for a State has submitted, during best, a postulant can plea a legality of a sequence by filing rapist rider focus before a suitable forum. He has placed faith on a preference reported in a box of Kanu Sanyal Vs. District Magistrate, Darjeeling (AIR 1974 SC 510), where a anticipating has been available as follows;- “Where a chairman is committed to jail control by a efficient Court by an sequence that prima facie does not seem to be but office or unconditionally illegal.”

On care of opposite decisions on that faith has been placed by a parties and a sustenance underneath Section 125(3) Cr. P.C., we find that a emanate has been staid by a Apex Court in (1999) 5 SCC 672 and by preference reported in 2000(1) PLJR 578. The Principle Judge, Family Court, after holding a postulant in control has not upheld any uninformed sequence for prolongation of a duration in control for uninformed default of any month. Since a condition for gripping in control as supposing underneath Sub-section (3) of Section 125 Cr.P.C. has not been celebrated by a element Judge, Family Court, a apprehension of postulant over one month?s duration can't be hold to be legal. Once it is hold that a apprehension is illegal, there can't be any doubt per maintainability of a command application. Keeping in perspective that a postulant has remained in control over one month?s period, in a contribution and resources of a case, his apprehension is illegal. Accordingly instruction is being expelled for recover of a postulant forthwith in tie with Maintenance Case No. 308M/2005, if not wanted to sojourn in control in any other case.

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The command focus stands allowed.

(Mridula Mishra,J.)
(Dharnidhar Jha,J.)

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