DEBENDRA NATH LENKA Vs. ANJANA PAIKRAY AND ORS.

JUDGEMENT

(1.) THIS is an application under Section 482, Code of Criminal Procedure for direction to quash the orders passed in Criminal Proceeding No. 302 of 1992 and Criminal proceeding No. 145 of 1994 for realisation of the arrear maintenance amount from the Petitioner and also to quash the order dated 24.9.98, issuing non -bailable warrant of arrest against the Petitioner.

(2.) OPPOSITE party No. 1 is the wife of opposite party No. 3 and opposite party No. 2 is the daughter of opposite parties 1 and 3. Opposite parties 1 and 2 had filed an application under Section 125, Code of Criminal Procedure before the learned Judge. Family Court, Cuttack, claiming maintenance against opposite party No. 3. The said proceeding was decided ex parte on 18.6.92 and opposite party No. 3 was directed to pay maintenance at the rate of Rs. 400/ - per month, i.e. Rs. 300/ - for the wife -opposite party No. 1 and Rs. 100/ - for the daughter -opposite party No. 2 The said application was registered as Criminal proceeding No. 483 of (99). After disposal of the said petition, opposite parties 1 and 2 filed execution proceeding bearing No. 302 of 1992 for realisation of the arrear amount and another application under Section 128 Code of Criminal Procedure was also filed by the said opposite parties vide criminal proceeding No. 145 of 1994 for realisation of the maintenance amount from April, 1992 to March, 1994. As opposite party No. 3 did not pay the amount as directed by the Judge, Family Court, distress warrant and a conditional non -bailable warrant were issued against him. Opposite party No. 3 was arrested and produced before the Judge, Family Court on 26.8.97. Thereafter opposite party No. 3 was remanded to custody on 28.8.97. An application was filed on behalf of opposite party No. 3 for grant of bail and the Petitioner stood as a surety and furnished bail bond. The learned Judge, Family Court, released opposite party No. 3 on bail. While granting bail to opposite party No. 3, the learned Judge directed that if opposite party No. 3 fails to pay the arrear dues of Rs. 5,400/ -, the Petitioner shall be liable to pay the same. After being released, opposite party No. 3 paid Rs. 1,450/ - on two different occasions but could not pay the entire amount and therefore, again N.B.W. and D.W. were issued for realisation of the balance amount. While Criminal proceeding Nos. 302/92 and ]45/94 were pending execution of warrants against opposite party No. 3. Opposite parties 1 and 2 again failed another application under Section 128, Code of Criminal Procedure vide criminal proceeding No. 491 of 1997 for realisation of the arrear maintenance for rest of the months. ]n the said proceeding also N.B.W. and D.W. were issued against opposite party No. 3. Pursuant to the warrants issued in all the three Criminal proceedings, opposite party No. 3 was arrested and produced before the Judge. Family Court on 7.1.98 and since then he is in custody. The grievance of the Petitioner is that as opposite party No. 3 failed to pay the arrear maintenance dues, the learned Judge, Family Court is forcing him to pay the amount as per the earlier order and ultimately has issued N.B.W. against the Petitioner for non -payment of the dues. Learned Counsel appearing for the Petitioner submits that non -payment of the dues by the husband may result in proceeding against him and there is no provision under law to proceed against the surety for realisation of the arrear amount. In the present case, the "learned Counsel submits, the surety is being forced to pay the arrear maintenance on behalf of opposite party No. 3 taking advantage of an order in which the Petitioner is supposed to have given an undertaking to pay the arrear maintenance, if not paid by opposite party No. 3.

(3.) IN a proceeding under Section 125, Code of Criminal Procedure the wife and children can claim maintenance, if they are neglected by the husband or father, as the case may be, if the husband or the father having sufficient means, refuses to maintain them. Section 128 , Code of Criminal Procedure prescribes for enforcement of order of maintenance. The said provision prescribed that a copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made maybe, on such Magistrate being satisfied as to the identity of the parties and the non -payment of the allowance due.' In view of such provision, the Magistrate can only enforce, the question of enforcing payment against the surety does not arise. It appears from the order -sheet that under compulsion the surety has paid certain amount, and even an undertaking by the surety to pay the amount should not be acted upon as the law does not provide to recover the arrear from the surety. Therefore, in my view, the direction issued by the judge, Family court, for recovering the dues from the Petitioner who was only a surety cannot be maintained and accordingly the order issuing N.B.W. against the Petitioner for non -payment of arrear dues by opposite party No. 3 cannot be sustained.