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Husband having Two Houses, Cannot be Sent to Jail for Execution of Maintenance Order


Bench: JUSTICE J.G. Chitre


Law Point:
Husband having Two Houses, Cannot be Sent to Jail for Execution of Maintenance Order.


The petitioner, Smt. Shakuntalabai w/o Nandkishore Joshi is hereby challenging correctness, property and legality of the order passed by judicial Magistrate, First Class, Mhow in the matter of M.Cr.C. No. 116/86 dated 13.3.90 as well as the order passed by Addl. Sessions Judge, Mhow in the matter of Cr.R. 12/90 dated 19.11.91.

2. As I gather from the arguments of Shri Umesh Maheshwari the petitioner has a grievance that though the Court order granting alimony in favour of Shakuntala at Rs. 200/- per month payable by her husband Nandkishore Joshi, when an application was made for execution of that order, the learned Magistrate did not send Nandkishore Joshi to jail. It also appears to be grievance of the petitioner, as depicted by the arguments advanced, that though the petitioner is having two houses belonging to him, learned Magistrate unnecessarily gave importance to the report of a police constable indicating that Nandkishore Joshi does not possess any movable property. It appears to be third grievance of the petitioner that when in previous inquiry it has been held that Nandkishore Joshi was having two houses, learned Magistrate is making again inquiry for the purpose of assessing whether Nandkishore Joshi is having property and is able to pay the maintenance to petitioner. Shri S.H. Agrawal appearing for Nandkishore Joshi, submitted that impugned order of the Magistrate is correct, proper and legal and Shakuntalabai’s application deserves to be dismissed.

3. Shri Umesh Maheshwari, Counsel for the petitioner, relied on the judgment of this High Court in the matter of Durga Singh Lodhi v. Prembai & Others, reported in 1990 JLJ 307, in which it has been observed that “person suffering liability to pay maintenance allowance u/Sec. 125(1) Cr.P.C. cannot avoid that liability on the ground of not possessing any visible property. If the husband is able bodied person, he is bound to discharge the liability else he may be sent to jail.

4. By relying on this judgment Shri Maheshwari Counsel for the petitioner submitted that in the present matter the learned Magistrate should have sent the opponent Nandkishore Joshi to jail in execution of the maintenance order in favour of Shakuntala w/o Nandkishore Joshi. He further urged that the Sessions Court should have given such direction to Magistrate while deciding the revision petition in this context.

5. In paragraph 3 of the said judgment in the matter of Durga Singh (supra) the Division Bench of this High Court observed that the order u/Sec. 125(1) is enforced by issuance of a distress warrant in the manner provided in the Code for levying fines. If, inspite of such a warrant the monthly allowance awarded u/Sec. 125(1) remains unpaid an order for imprisonment as provided u/Sec. 125(3) may be passed.

6. In the present matter it is the contention of the learned Advocate for the petitioner Shakuntala, that it has been determined in the previous inquiry made by the Magistrate that two houses are belonging to the opponent, Nandkishore Joshi. If it is the contention of Petitioner Shakuntala that way, who the petitioner can be entitled to a warrant for sending the opponent Nand Kishore directly to jail for execution of the maintenance order. When those two houses are there, as per contention of Petitioner Shakuntala, the Magistrate is obliged’ to follow the procedure laid down u/Sec. 421 of Cr.P.C. even in the light of the observation of Division Bench of this High Court in the matter of Durga Singh (supra) as indicated by paragraph of 3 of the judgment.

7. Thus, in the present matter it is not the duty of the Magistrate to make the assess whether Nandkishore Joshi is still having those two houses. If the enquiry reveals that he is having those two houses, then the Magistrate will have to follow the procedure which has been laid down by Sec. 421 Cr.P.C. Unless such procedure is followed, the opponent husband Nandkishore Joshi cannot be sent to Jail atonce for execution of said maintenance order. Unfortunately, the Courts below lost the sight of this aspect of the matter and unfortunately the Petitioner has prematurely invoked the powers of High Court in view of Sec. 482 of Cr.P.C. Except this direction, nothing remains to be done in this petition.

8. As requested by learned Advocate Shri Umesh Maheshwari the learned Magistrate should complete the said enquiry as early as possible and within three months from receipt of this order keeping in view of the urgency of a discarded wife for getting alimony. Thus this application is disposed of. A copy of this order be sent to the learned Magistrate urgently.

Ordered accordingly.