Recovery warrant u/s 125

Originally posted by : Rajiv kumar
	The magistrate has issued a recovery warrant u/s 125, although I have paid Rs. 2,00,000 earlier and paying some small instalment in last two month. the wife is working with Rs. 30,000 per month and court has record of it.  but it did not change the maintenance order. My petition against the maintenance order os pending in session court.  please suggest the remedial action for recovery warrant, how  I can stop giving this amount?

Remedy 1: Abscond. Go hiding. Go underground.

Remedy 2: Secure hand loan and pay of the balance and clear all dues.

Remedy 3:  Give a letter to family court judge that you are willing to take back wife, you will be saved from future payments of alimony.  Just giving letter wont suffice, you have to bring her back and start marital life again.

Just bringing wife back wont help, you have to clear old dues and then get a nod from Family Court judge then bring her back in doli. Then you can ask pocket money from her 30000 salary and pain her toes with pink nail polish. 

Originally posted by : Rajiv kumar
	The magistrate has issued a recovery warrant u/s 125, although I have paid Rs. 2,00,000 earlier and paying some small instalment in last two month. the wife is working with Rs. 30,000 per month and court has record of it.  but it did not change the maintenance order. My petition against the maintenance order os pending in session court.  please suggest the remedial action for recovery warrant, how  I can stop giving this amount?

When she herself is working why are you paying maintenance?

Is it for child?

If not, then why you havn't applied for stay order?

Why you paid Rs 2 lac ?

Dear helping Hand,

If you have any remedy 4 legal in spirit then do let me know. 

Dear Sachin,  

Her job information was identified after maintenance order, but magistrate did not change the original order. she might be sleeping with him or bribing somehow. either of possibility is there for sure. 

my application against the order is pending session court. 

Do I need to go high court for stay or pay some bulk amount. 

Originally posted by : Rajiv kumar
	Dear Sachin,   Her job information was identified after maintenance order, but magistrate did not change the original order. she might be sleeping with him or bribing somehow. either of possibility is there for sure.  my application against the order is pending session court.  Do I need to go high court for stay or pay some bulk amount.

You should have prayed to session court to call TCR ( Trial court Record). To avoid this situation.

Now first take stay order against warrant.

Also file perjury against her.

Originally posted by : Rajiv kumar
	Dear Sachin,   Her job information was identified after maintenance order, but   magistrate did not change the original order. she might be sleeping with him or bribing somehow. either of possibility is there for sure.

If you don't trust the judge, you can file transfer petition in the court of District Judge.

file appeal against said order

Great advise.  He dont have money to pay alimony, and where will he go for appeal? 

Querist,

Once man marries, he has to maitain wife and kids, whether they stay with you or without you.

Warrant issue can  be cancelled if you clear old dues. 

Appeal, re-appeal all that later.  First clear dues, see above ppl who suggested you might lend you money or give you money.  No other solution.  Even if you go for appeal, you will have to clear minimum fifty percent of dues without which your appeal wont be accepted at all. By end of it nobody knows what will happen in appeal.  If some judge is tehre who favors women, he might increase the alimony lower court ordered and even more increase burden for you, if your good luck is very good !!

Why all this problem, adjust with wife.  if not this wife some other wife you will get, but that also will be like this only, might be worse than this.  There also you have to adjust, why not adjust with old wife than break head about appeal re-appeal re-marry wtih new wifi?

Dear helping Hand,

Possibility of adjusting life with wife is rarest of rare phenomena which can happen, as today it is 13 yr off marriage and we are separated almost from 13 yr.

5-6 yr back, when the litigations were in starting stage, i have handed over an application to court in DV case that i want to live with my wife. But my wife had already done so much crime against me, while filing litigation that she even rejected the offer being "gharjamai". So adjustment is rare to rare phenomena. 

" Once man marries, he has to maitain wife and kids, whether they stay with you or without you" :

Everything written as law is always not correct. 75 yr back "Gulami" was a law and practiced which was also not correct. 100 yr back " SATIPRATHA" was rule in society and practiced which was also not correct. Even today property rights of women is not well defined. A girl who lives her life with father and mother do not get 1% part of property but just by taking 7 fere , she becomes a liability for someone ( and in laws ) for life time. However there might not be any contribution by her to the in law's family. 

The dowry issues and property rights of women are interlinked and society it self is not ready to resolve it. These false litigation are only because disguised property rights of woman. The marriage failure rates are increasing because cultural change but it leaves the property rights of woman in dark. A girl supposed to get property where she looses her virginity but not from the family where she might have stayed for entire life. 

A wife who has been responsible for taking the goverment job of husband , how she could be entitled for livilihood when she herself taken away the livilhood. but if this truth is diclosed in court by my lawyer, how and from where this entire gamble of dowry cases and DV would sustain. it would be economic failure to model, built by society. 

During these entire litigation process , the boy family is only source of money to drive this gamble and get harrassed for nothing. The voices in society have got changed but not to the extent that it may change the view of judciary and specialy lower judiciary. 

 

Allahabad High Court Dilshad S/O Haji Risal vs State Of U.P. And Smt. Hajra Begum ... on 12 September, 2005 Equivalent citations: AIR 2005 All 403, 2005 CriLJ 228, I (2006) DMC 461 Author: M Mittal Bench: M Mittal JUDGMENT M.K. Mittal, J. 1. This application under Section 482 Cr.P.C. has -been filed by Dilshad husband of Smt. Hazara Begum wherein he has challenged the order of the Learned Magistrate passed under Section 125(3) Cr.P.C. directing issuance of recovery warrant against the applleant for Rs. 22,500/-. 2. The brief facts giving rise to this application are that the opposite party No. 2 filed an application under Section 125 Cr.P.C. on 20.5.1999 against the applicant claiming maintenance for herself and her two children. The applications was allowed by an ex-parte order dated 27.7.2000 and total maintenance of Rs. 1500/- per month for three person was awarded from the date of the application. The applicant did not pay any maintenance and then an application under Section 125(3) Cr.P.C. was filed on 28.8.2000 and on that application recovery warrant was issued against the applicant for Rs. 22,500/-. Since the applicant did not pay the amount he was arrested and was sent to jail where he remained for one month. This amount referred to the period 20.5.1999 to 20.8.2004. The case remained pending and the opposite party No. 2 filed another application on 13.2.2004 claiming maintenance for the period 21.8.2000 to 20.1.2004 for 41 months for Rs. 61,500/- The applicant filed an objection on 21.7.2004 contending that the claim for Rs. 61,500/-- was beyond time as the application was filed after one year of its becoming due, that in the earlier execution application he was sent to jail and that matter could not be re-agitated and that he was willing to maintain his wife and children and to keep them with him. The learned Magistrate by the impugned order directed that the recovery warrant be issued against the applicant for the maintenance amount due for the period of fifteen months commencing from 20.5.1999 and ending on 20.8.2000 for Rs. 22,500/-. Against this order the applicant has come to this court under Section 482 Cr.P.C. 3. I have heard learned counsel for the applicant, learned A.G.A. for the state and perused the record. 4. The main contention of the learned counsel for the applicant is that the learned Magistrate directed for ,, issuance of warrant without first deciding his objection filed under the proviso to Section 125(3) Cr.P.C. The second proviso to Section 125(3) Cr.P.C. reads as under: "Provided" further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing." 5. The second proviso to sub Section 3 of Section 25 enunciates a salutary principle of courts having to consider the offer made by the husband to take back the wife and maintain her and if necessary Dilshad S/O Haji Risal vs State Of U.P. And Smt. Hajra Begum ... on 12 September, 2005 Indian Kanoon - https://indiankanoon.org/doc/286128/ 1 uphold the wife's right to refuse such an offer only when the court is satisfied that there is just ground for so refusing. The intendment of this provision is for affording as many opportunities as possible by the Court for composing the differences between the husband and the wife. When such is the purpose, the dutly cast upon the court to enquire into the matter arising out of such an offer or to state reasons for refusal of that offer should not be brushed aside merely on the ground that on earlier occasions or in original applications demanding maintenance such offer or offers have been considered. But the second proviso to sub Section 3 has been added in the interests of the wife and not the husband. It is to stop a Magistrate from too readily accepting the proposition that as soon as a husband offers to maintain his wife, if she lives with him, he ceases to 'neglect' or to 'refuse to maintain' his wife. It was a recognition of the principle that a woman is entitled to live with that amount of decency and dignity which prevails in her class and if the treatment of the husband towards his wife does not permit her to lead such a life, his conduct amounts to a 'neglect' and 'refusal to maintain' within the meaning of Section 125(1) such an offer is, therefore, to be carefully tested and if the wife gives adequate reasons for refusing to live with her husband, she is not to be deprived of her right to maintenance. It is only when her reasons are insufficient that her claim can be denied. This proviso gives another opportunity to the husband to make a genuine bonafide offer to maintain his wife on condition of her living with him. 6. Therefore, in view of this position it was the duty of the learned Magistrate to have decided the objections as filed by the applicant husband under Section 125(3) Cr.P.C. Therefore, the learned Magistrate has erred in issuing the recovery warrant without deciding objections. 7. Learned counsel for the applicant has also contended that the accused had already been sent to jail for the period for which the recovery warrant has been issued and the learned Magistrate was not competent to issue recovery warrant for that period. But this contention of the learned counsel for the applicant cannot be accepted. It is not disputed that the applicant has not yet made any payment towards maintenance allowance to his wife and the children for the period he was sent to fail and therefore that liability has not yet been discharged. In the case of Smt Kuldip Kaur v. Surinder Singh and Anr., , it has been held by the Hon'ble Apex Court that a distinction has to be drawn between a mode of enforcing recovery of maintenance allowance on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a mode of enforcement. It is not a mode of satisfaction of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refused to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. A person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance' without sufficient cause" to comply with the order. It cannot be said that a person who without reasonable cause refuses to comply with the order of the court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears. Monthly allowance is paid in order to enable the wife and child to live by providing with the essential economic wherewithal. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to live. Instead of providing them Dilshad S/O Haji Risal vs State Of U.P. And Smt. Hajra Begum ... on 12 September, 2005 Indian Kanoon - https://indiankanoon.org/doc/286128/ 2 with the funds, no useful purpose would be served by sending the husband to jail. Sentencing to jail is the means for achieving the end of enforcing the order by recovering the amount of arrears. It is not a mode of discharging liability. The section does not say so. The Parliament in its wisdom has not said so. Common sense does into support such a construction/'' 8. Therefore it is within the power of the learned Magistrate to direct for recovery warrant against the husband for the period for which he had already been confined in jail. 9. Learned counsel for the applicant has further contended that the application as given by the opposite party for recovery of maintenance for 41 months on 13.2.2004 was barred by time as it was given after one year of the amount having become due. But this contention of the learned counsel for the applicant cannot be accepted in view of law as laid down by the Hon'ble Apex Court in the case of Shanta @ Usha Devi v. B.G. Shivananjappa, . In this case it has been held by the Hon'ble Apex Court that the bar of limitation of one year as given under Section 125(3) Cr.P.C. first proviso is not applicable in case of interim application given for recovery of maintenance allowance. It has also been heid that insisting of filing successive application is only unreasonable since liability to pay maintenance is continuing liability. 10. In the instant case when the application was moved on 13.2.2004, the first application filed for recovery of maintenance on 28.08.2000 was still pending as the applicant has not paid any maintenance allowance. 11. Learned counsel for the applicant has filed the order sheet of case number 58 of 2004 and learned Magistrate has passed the order on 4.4.2005 regarding the recovery of maintenance amount for the period of 41 months. But in view of the judgement of the Hon'ble Apex Court as mentioned above, the finding as recorded by learned Magistrate is not correct. 12. In view of the above discussion, I come to the conclusion that the impugned order dated 8.6.2005 where by learned Magistrate directed for issuing recovery warrant against the applicant is to be set-aside and the case has to be remanded. 13. The application under Section 482 Cr.P.C. is allowed and the impugned order dated 8.6.2005 and order dated 4.4.2005 are set aside and the learned Magistrate is directed to first decide the objection as filed by the applicant Dilshad under Section 125(3) Cr.P.C, second proviso within a period of one month after the copy of the order is filed in his Court by the applicant. The applicant shall file the certified copy of the order in the trial court within seven days from today and shall cooperate in early disposal of the objections. If the learned Magistrate finds that the objections as filed by the applicant is not sustainable, learned Magistrate shall decide the applications dated 28.8.2000 and 13.2.2004 in the light of observations made above and shall pass suitable orders afresh after merging the files of miscellaneous case No. 58 of 2004, 59 of 2004 under Section 125(3) Cr.P.C. 14. Copy of this order be issued to the applicant within three days on payment of usual charges.