- In the case of Vipin Kumar vs State of UP and anr. the Allahabad HC has held that in cases of non-payment of maintenance allowance, the Magistrate has no jurisdiction to issue a warrant of arrest straightaway, without first levying the amount due as fine under section 421 of CrPC.
- In the instant case, the wife of the applicant, along with her daughter, had filed an application under section 125 of CrPC before the Family Court, Kasganj seeking maintenance from the applicant/husband. The Applicant, being handicapped could not comply with the order and thus, a recovery warrant was issued against him for a sum of Rs.1,65,000/- to be paid to the wife and in pursuance of the recovery warrant, the applicant was sent to jail.
- This order of the Family Court was challenged by the husband and he moved the HC under section 482 CrPC.
- The Counsel for the applicant argued that the order passed by the lower Family Court was made without complying with the provisions of section 125(3) CrPC which provides for the issuance of warrant for levying the amount in the manner as is provided for the levying of fines under section 421 of CrPC, and was liable to be quashed.
- The Hon’ble HC that the provisions of section 125(3) CrPC clearly state that if a default has been made in the payment of maintenance, then the Court is empowered to issue a warrant for the levy of fine, and further noted that section 421(1)(a) clearly states that the amount could be realised by the attachment and sale of any movable property belonging to the offender.
- Thus, the Court categorically held that the Magistrate has no jurisdiction to issue a warrant of arrest straightaway without first levying the amount due as fine and without making any attempt for the realisation of that fine in the modes provided in section 421 of CrPC.
- In view of the same, the HC observed that the Family Court had not followed the correct procedure for the issuance of recovery warrant in default of payment of maintenance and therefore, the order was set aside.
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