Friday 15 December 2023

What is procedure for execution of an order for maintenance U/S 125 of CRPC?

 As per the former part of Section 125 (3) regarding the recovery of maintenance, the recovery of maintenance or interim maintenance may be made by applying the procedure of issuing warrant for levying the amount due in the manner provided for levying fines i.e. by way of applying provisions of section 421 of Code of Criminal Procedure i.e. by way of:

  1. Issuing a warrant of attachment and sale of any movable property belonging to defaulter.

  2. Issuing a warrant to the Collector of the district for realizing the amount from movable or immoveable property of the defaulter;
    And as per the later part of Sec. 125(3) in case of maintenance or interim maintenance remaining unpaid after the execution of the warrant the Magistrate may -
    Sentence such person, for the whole or any part of each month's allowance for the maintenance or interim maintenance and expenses of proceeding, as the case may be, to one month or until payment if sooner made.

Important Caselaws:

  1. Whether salary of husband can attached for recovery of maintenance allowance granted to wife?

When a money lender or a Bank has got the right to attach the salary or an official to the extent indicated therein in execution of the money decree or maintenance decree, it is preposterous to say that a wife cannot seek for attachment of her husband's salary for recovering the arrears of maintenance granted by the Magistrate under S. 125(3). A wife who is entitled to maintenance under S. 125, Cr.P.C. and who is also entitled to recover the arrears under S. 125(3), cannot be placed worst than a money lender. What is available under S. 60, C.P.C. for a maintenance decree-holder, can also be made available under S. 125(3), Cr.P.C. for the recovery of arrears of maintenance."

Bombay High Court

Bhagwat Baburao Gaikwad And ... vs Baburao Bhaiyya Gaikwad And ... on 28 September, 1993

Equivalent citations: 1994 (2) BomCR 695, 1994 CriLJ 2393, II (1994) DMC 195.

2) Whether Magistrate can impose imprisonment for more than one month if default in payment of maintenance U/S 125 of CRPC is more than one month?

13. It is thus clear that the Magistrate, in exercise of the powers under Section 125 of Cr.P.C., is empowered to sentence the defaulting person for a term of one month for each month of default. In other words, it is open for the Magistrate to award the sentence up to maximum one month for each month's default made by the person ordered to pay the maintenance. Thus, the maximum limit of sentence of one month referred to in Sub-section (3) of Section 125 of Cr.P.C. is applicable for each month of default. Even the Magistrate can entertain separate applications or even entertain a common application for several months of default and pass appropriate order. If there are arrears of more than one month, then the imprisonment exceeding the period of one month can be imposed.




Anil Sampatrao Kothawale Vs Pushpabai Anil Kothawale 


Dated :16.10.2018

3) Whether liability of husband to pay maintenance is wiped out if he has undergone imprisonment for default of payment of maintenance?

The order passed by the learned Magistrate as confirmed by the High Court in exercise of its revisional jurisdiction to the effect that the amount of monthly allowance payable under Section 125 of the Code of Criminal Procedure is wiped out and is not recoverable any more by reason of the fact that respondent No. 1, Surinder Singh, was sent to jail in exercise of the powers under Section 125 of the Code of Criminal Procedure is set . In our opinion, respondent No. 1, husband of appellant, is not absolved from his liability to pay the monthly allowance by reason of his undergoing a sentence of jail and the amount is still recoverable notwithstanding the fact that the respondent No. 1 husband who is liable to pay he monthly allowance has undergone a sentence of jail for failure to pay the same.

Supreme Court of India

Smt. Kuldip Kaur vs Surinder Singh And Anr on 3 November, 1988

Equivalent citations: 1989 AIR 232, 1988 SCR Supl. (3) 762

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