Non-Payment of Maintenance Allowance – Powers of Magistrate
On a plain reading of sub-section (3) of Section 125 CrPC, it is apparently clear that in the event of any failure on the part of any person to comply with an order to pay maintenance allowance, without sufficient cause, the Magistrate is empowered to issue warrant for levying the amount due in manner provided for levying of fines for every breach of the order. Section 421 CrPC prescribes the manner for levying fine and clause (a) of sub-section (1) of Section 421 provided for issuance of warrant for levy of the amount by attachment and sale of any movable property belonging to the offender. In other words, in the event of any failure without sufficient cause to comply with the order for maintenance allowance, the Magistrate is empowered to issue distress warrant for the purpose of realisation of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may be seized in execution of such warrant. Sub-section (3) of Section 125 CrPC makes it further clear that the jurisdiction of the Magistrate for sentencing such person to imprisonment would arise only after the maintenance allowance, in whole or in part, remains unpaid after the maintenance allowance, in warrant. It is only after the sentence of imprisonment is awarded by the Magistrate under sub-section (3) of Section 125 that the occasion may arise for issuance of warrant of arrest for bringing the person concerned to Court for his committal to prison to serve out the sentence. It is further apparent that the Magistrate has no jurisdiction to issue warrant of arrest straight away against the person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the court without first levying the amount due as fine and without making any attempt for realisation that fine in one or both the modes for recovery of that fine as provided for in clauses (a) or (b) of Sub-Section (1) of Section 421 CrPC say by issuance of distress warrant for attachment and sale of movable property belonging to the defaulter as contemplated under Section 421(1)(a) and without first sentencing the defaulter to imprisonment after the execution of the distress warrant. Vipin Kumar v. State of U.P., 2022 (152) ALR 478.