ORDER
Deoki Nandan Prasad, J.
1. This application has been filed under Section 482 of the Code of Criminal Procedure for quashing the order dated 16.2.2001, whereby and whereunder a distress warrant of arrest has been issued against the petitioner in connection with Cr. Misc. No. 66 of 1999.
2. Short facts giving rise to this application is that the opposite party No. 2 filed a petition before the Court below under Section 125 Cr.P.C. claiming therein that she was married with the petitioner on 16.9.1993 at Amara Para according to the Hindu Religion. After marriage, she went to Phulwaria at the house of the petitioner and started living and in the year 1994, a female child was born. The opposite party No. 2 in the year 1995 went to her parental home. It is further alleged that the petitioner alongwith other started torturing the opposite party No. 2 and demanded a sum of Rs. 20,000/- as dowry and she was subjected to mental and physical torture even at the period of pregnancy. It is also alleged that the Opposite Party No. 2 was driven away alongwith her minor daughter forcibly on 17.8.1995. Accordingly, a petition for maintenance was filed. Both parties adduced evidence in the Court below and after hearing both sides, the Court below passed the order for maintenance of Rs. 400/- per month in favour of opposite party No. 2, Kabita Gupta and Rs. 300/- per month in favour of minor daughter, by order dated 27.11.2000.
3. A Petition was filed before the Court below for issuance of distress warrant and the learned Court below passed the order for issuance of distress warrant by the impugned order.
4. The learned counsel appearing on behalf of the petitioner submitted that the petitioner had already filed a Matrimonial Suit No. 7 of 1998 for restitution of conjugal rights and that suit was decided in favour of the petitioner. Accordingly, a decree for restitution of conjugal rights was passed. There was clear cut direction in the Matrimonial Suit that the opposite party No. 2, Smt. Kabita Gupta was to join the matrimonial home of the petitioner within one month from the date of the order i.e. 20.3.1999 but the opposite party No. 2 did not comply the said order, nor did she visited the matrimonial house. It is further submitted that Smt. Kabita Gupta, opposite party No. 2, was fully aware about the said matrimonial suit because she had received the notice and acknowledged the receipt of notice by putting her signature but she did not appear in the said matrimonial suit and, therefore, the Court below wrongly passed the order issuing distress warrant. It is further submitted that the Court below committed error in passing the order. As at first instance, distress warrant was issued when the petitioner ought to have given opportunity to show cause for violating the order but without giving any notice or show cause to the petitioner, the Court below passed the order issuing distress warrant without complying the legal provisions under Section 125(3), Cr.P.C..
The learned counsel also relied upon the case of Ashok Prasad v. State of Bihar and Anr. 2001 (1) PLJR 578 (Pat).
5. On the other hand, the learned counsel appearing on behalf of the opposite party No. 2 contended before me that there is no illegality in the order impugned as the learned Court below rightly passed the order. The said matrimonial suit was decided ex parte in absence of the opposite party No. 2 and against which Misc. Appeal has already been filed, which is still pending. The petitioner failed to comply the order in payment of the maintenance either to the wife or to her child, who is quite minor and opposite party No. 2 has been facing much difficulty in the house of her parent.
6. Obviously, Maintenance case was decided by order dated 27.11.2000 whereby the petitioner was directed to pay a maintenance of Rs. 400/- per month to Kabita Gupta, O.P. No. 2 and Rs. 300/- per month to her child, Annu Kumari. The mode of enforcement of the order of maintenance passed under Section 125(1), Cr.P.C. has been provided in Section 125(3), Cr.P.C., which reads as follows :
Section 125(3)
“If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment, for a term which may extend to one month or until payment if sooner made.”
7. Thus, it is clear that if any person, who has been ordered to pay maintenance under Section 125(1), Cr.P.C. fails without sufficient cause to comply with the order, the Magistrate may take such steps for realization of the amount which are provided for levying fines and after distress warrant, it is found that any amount has remained unpaid, the Magistrate may sentence such person, for the whole or any part of maintenance.
8. Thus, it is clear that the Magistrate has to satisfy that the order has not been complied by a person without sufficient cause meaning thereby the person against whom the maintenance order was passed must be given an-opportunity to explain the sufficient cause for the non compliance, but in the instant case the Court below passed the order without giving any opportunity to the petitioner for explaining the cause for non compliance of the order. There is no such order passed by the learned Magistrate that he passed the order for issuance of distress warrant after being satisfied that the petitioner without any sufficient cause is not paying the maintenance. Unless the Magistrate makes such satisfaction, he cannot be allowed to issue distress warrant at the first instance. So, the Court below without complying the provisions of Clause (3) of Section 125, Cr.P.C. passed the order impugned, which cannot be sustained in the eye of law and it is fit to be quashed.
9. In the present case, there is nothing on the record to show that before issuing distress warrant against the petitioner, the Magistrate was satisfied that the petitioner was not complying the order without any sufficient cause, which is the essential ingredients before issuing distress warrant and in this way the Court below apparently committed error by passing the order impugned.
10. In the above facts and circumstances, I find merit in this application, which is accordingly allowed. Consequently, the order dated 16.2.2001 is, hereby,
quashed.