K NITHIYANANDAN Vs. B RADHAMANI

JUDGEMENT

(1.) This is an application filed under S.482 of the Code of Criminal Procedure by a husband who has been sent to jail for his failure to pay maintenance awarded by the Judicial First Class Magistrate, Adoor, in M. C. No. 47/77, in favour of his wife, the first respondent herein and their minor child. On an application filed by the first respondent claiming maintenance against the petitioner herein, the Sub Divisional Magistrate, Adoor, awarded maintenance at the rate of Rs. 120/- per mensem to the first respondent and Rs. 75/- per mensem to the minor child. The petitioner was an employee in Kodumon plantation. The petitioner committed default in payment of the maintenance awarded in favour of the first respondent and the minor child. On April 4, 1979 an application was filed by the first respondent alleging that maintenance for the period from 9-8-1978 to 9-1-1979, amounting to Rs. 975/- was in arrears and therefore a warrant should be issued against the petitioner. The learned magistrate as soon as he received this application issued a warrant of arrest against the petitioner returnable on 6-6-1979. On 6-6-1979 a non bailable warrant was issued returnable on 20-6-1979 and finally the petitioner was arrested and produced before the Magistrate on 16-6-1979, when the Magistrate straightaway sent him to jail to suffer imprisonment for a period of 5 months for having committed default in payment of maintenance allowance for a period from 9-8-1978 to 9-1-1979. It is this order that is challenged before this Court by the learned advocate appearing for the petitioner on various grounds.

(2.) The counsel submitted that the order is one without jurisdiction, thoroughly illegal in as much as it is in flagrant violation of the salutary provisions in sub-s.(3) of S.125 of the Code of Criminal Procedure, 1973, hereinafter called the Code; and that the learned Magistrate has also denied natural justice to the petitioner by not issuing a notice before issuing the warrant for arrest. The learned advocate appearing for the first respondent very strongly supported this order contending that it is left to the option of the Magistrate to issue a warrant for arrest of the defaulter in the first instance itself and that it is not a condition precedent that before issuing such a warrant he should proceed in accordance with the provisions in S.421 of the Code.

(3.) The decision on the point in dispute depends on a proper construction and correct understanding of sub-s.(3) of S.125, which reads: