SHYAMLATA BINDAL Vs. ABHISHEK BINDAL

JUDGEMENT

(1.) BY this petition, under Article 227 of the Constitution of India, challenge is made to the order passed by the trial Court dated 19.2.2014 (Annexure P -9), whereby on account of default on the part of petitioner in the matter of payment of interim maintenance to respondent No.2 pursuant to the order passed by it on 6.5.2011 (Annexure P -4), the trial Court directed that on deposit of requisite process fee, warrant be issued against the petitioner for recovery of the said amount and upon failure, for her arrest.

(2.) LEARNED counsel for the petitioner submits that the mode of recovery, as provided for under section 421 of the CrPC, is the only mode for realization ot any amount due from the defaulter. He further submits that either the property can be attached or the amount due can be recovered as an arrears of land revenue, as provided in Clauses (a) and (b) of section 421 of the CrPC. According to him, there is no provision for issuance of warrant of arrest of a lady in the event of default of payment of dues. Further, it is submitted that even otherwise, section 56 of the CPC clearly provides that the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money. Hence, in no eventuality, the order of issuance of warrant of arrest could have been passed against the petitioner.

(3.) PER contra learned counsel for the respondents submits that since 6.5.2011 i.e. the date when she was held entitled for maintenance, no amount has been paid by the petitioner and about Rupees One lac has become due to her. There is no dispute between the parties that the aforesaid order dated 6.5.2011 has attained finality and has been accepted by the parties. Hence, the amount so due, being legally recoverable, the petitioner was obliged to make good the aforesaid amount. However, since the said amount has not been paid, the trial Court was justified having issued warrant of arrest for recovery of the legal dues. According to him, no illegality is committed in the order passed by the trial Court, and, therefore, no interference is warranted. Having heard learned counsel for the parties, in the opinion of this Court, true it is that the order dated 6.5.2011 has attained finality and the petitioner has not complied with that order by payment of maintenance to respondent No.2. However. as there is express prohibition of arrest of a lady in the matter of recovery of dues, as provided under section 56 of the CPC, in the opinion of this Court, the trial Court has exceeded its jurisdiction having ordered for issuance of warrant of arrest against the petitioner. Therefore, to that extent the order is not sustainable. However, the order for issuance of warrant for recovery of amount due to the petitioner, is found to be fully justified. To do complete justice between the parties, this petition is disposed of with the following directions