BALJINDER SINGH Vs. DARSHAN KAUR

JUDGEMENT

(1.) THIS is a husband's petition under Section 482 of the Code of Criminal Procedure for quashing the orders dated November 26, 1990 and dated January 14, 1991 passed by Judicial Magistrate, Ist Class, Patiala, Annexures P. 1 and P. 2 and the proceedings consequent thereto.

(2.) THE facts of the case are that the respondent-wife filed an application under section 125 of the Code of Criminal Procedure for grant of maintenance and vide an ex-parte order dated 23-8-1989 she was awarded maintenance at the rate of Rs. (SIC) per month. She filed an application to enforce the order, whereupon Judicial Magistrate Ist Class, Patiala passed the order Annexure P. 1, According to this order a warrant of attachment of the property of the petitioner-husband was to be issued and the respondent-wife was directed to file warrant fee and list of property. The warrant was to be executed by 14th January, 1991. On 8-1-91 the wife moved an application supported by an affidavit that the petitioner did not own any movable or immovable property; as he had disposed of the same during the pendency of the application under section 125 of the Code of Criminal Procedure. The Magistrate then passed an order issuing conditional warrant of arrest of the petitioner for the recovery of the maintenance amount. This order is Annexure P2. The petitioner alleged that before the passing of the impugned orders no notice was issued to him nor he was given any opportunity of being heard. Before a warrant for his arrest was to be issued it was necessary that he should have been given an opportunity of being heard. The orders Annexure P. 1 and P. 7 were thus patently illegal and were passed without application of mind.

(3.) UNDER Section 125(3) of the Code of Criminal Procedure if any person so ordered falls 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 our month or until payment if sooner made.