Seniors plz share your views
Arvind Singh Chauhan
(Querist) 04 November 2012
This query is : Resolved
Sir,
Please through light on my posting on forum.-
http://www.lawyersclubindia.com/forum/May-i-know--69221.asp#.UJXvXGfZHPs
ajay sethi
(Expert) 04 November 2012
mind posting your query here arvind
R.K Nanda
(Expert) 04 November 2012
state query here.
Arvind Singh Chauhan
(Querist) 04 November 2012
Sorry Sir, I didn't posted in expert section, that seniors may ignore deeming it academic query. Here is the query-
Sir generally NBW is issued in recovery process of maintenance amount.
But is there any provision for NBW to defaulter in Cr.P.C. ?
whether court can issue NBW & may send to jail in default of payment ? If he does not appear himself in court.
Is there any fromat of such NBW in Cr.P.C.? I never found except form 18 & 19.
If there is no such provision and husband has no property, which remedy is available to wife & what is the resort with court strictly following the Cr.P.C.
ajay sethi
(Expert) 04 November 2012
If you dont pay the amount under section 125, girl would file the execution of order of maintenance under section 125(3). The court issues BW firstly and still you dont pay then NBW. In case of NBW, you can be sent to jail for max one month or you will be release whenever you pay the amount , whichever is achieved first
ajay sethi
(Expert) 04 November 2012
(2009) 4 MLJ (Crl) 440
Ravichandran, Tirupur, Coimbatore District
vs
Saraswathi Uttamapalayam Dhasavanaickenpatti Vellkovil,
Kangeyam Taluk, Erode District
Code of Criminal Procedure, 1973 (2 of 1974), Section 125(3) – Revision – Arrears of maintenance –
Revision petitioner sentenced to 15 months imprisonment for non payment of arrears – Revision petition
challenging jurisdiction of lower Court in awarding imprisonment for more than one month at a time –
Held, Magistrate has no power to detain a person for more than one month at a time – Order detaining
petitioner for 15 months at a stretch is erroneous warranting interference – Impugned order set aside.
Compendiously and concisely the relevant facts which are absolutely necessary and germane for the
disposal of this criminal revision case would run thus:i) The respondent herein filed Criminal M.P. No. 1591 of 2006 before the learned Judicial Magistrate,
Kangeyam, Erode District, for the purpose of enforcing the arrears of maintenance for the period of 15 month so
as to say between 4.3.2005 and 4.6.2006 as the revision petitioner herein failed to pay the maintenance to the
respondent as per the order of the Court dated 20.1.2006 made in M.C.No. 4 of 2005 ordering the revision
petitioner to pay to there- spondent a sum of Rs. 2,500/- per month. The learned Judicial Magistrate, after
securing the presence of the revision petitioner herein, sentenced him to undergo imprisonment for 15 months for
such non payment of arrears. Being aggrieved by and dissatisfied with the order of the learned Judicial
Magistrate sentencing the revision petitioner to undergo 15 months imprisonment, the revision is filed on the
ground that under Section 125(3) Cr.P.C, the Magistrate has got no jurisdiction to award more than one month
imprisonment at a time, whatever be the arrears.
The learned counsel for the respondent would cite the decision of the Hon’ble Apex Court Kuldip Kaur v.
Surinder Singh AIR 1989 SC 232: (1999) SCC (Crl) 171 and develop his argument to the effect that simply
because the revision petitioner undergoes imprisonment, the liability to pay maintenance would not get
obliterated. Absolutely, there could be no quarrel over such a proposition. However, in this case since the
Magistrate awarded 15 months imprisonment as against one month imprisonment contemplated under Section 125
Cr. P.C this Court has to exercise its revisional powers to set aside the said order and reduced the period of
sentence of 15 months to one month simple imprisonment. Accordingly, the revision petitioner is directed to
surrender before the concerned Magistrate Court immediately and if he does not surrender, the learned Judicial
Magistrate, Kangeyam, shall issue non bailable warrant, secure his presence and commit him to jail to undergo
one month simple imprisonment if not already under gone. Any portion of imprisonment if already gone by him,
the same shall be set off as against the period of one month. The learned counsel for the respondent would submit
that as per the order of suspension dated 5.3.2007 passed by this Court, some amount was directed to be deposited
before the lower Court. The revision petitioner is at liberty to withdraw the same. This criminal revision case
accordingly allowed.
Devajyoti Barman
(Expert) 04 November 2012
The court as ends of justice first issues DW and then issues NBW.
There is no specific provision why this is done here.
If the husband has no property then file petition on affidavit and then pray for NBW.
Arvind Singh Chauhan
(Querist) 04 November 2012
Yes Barman Sir. I found no where format of NBW in Cr.P.C for the purpose of 125.
There is only two format FOrm No.18, (Warrant of imprisonment on failure of maintenance) Which is Addressed to Officer in charge of jail, who can't arrest the person and may follow the order of court only if person appears in court himself or brought before court.
Second is Form No. 19 which is concerned with only attachment of property.
Is there any prescribed format of NBW for the purpose of 128 cr.p.c. While for other purpose there is Form 70, which relates to specific offence.
Also I couldn't find that court may issue NBW to compel the husband to pay maintenance.
