Harvinder Singh vs Jasmeet Kaur And Others
2021 Latest Caselaw 851 j&K

Citation : 2021 Latest Caselaw 851 j&K
Judgement Date : 10 August, 2021

Jammu & Kashmir High Court

Harvinder Singh vs Jasmeet Kaur And Others on 10 August, 2021

                                                                         Sr. No. 245



      HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                       AT JAMMU

                                                  CRM(M) No. 500/2019
                                                  CrlM No. 1210/2019

Harvinder Singh                                                      .....Petitioner(s)

                                 Through :- Mr. Tarun Sharma, Advocate

                           v/s
Jasmeet Kaur and others                                           .....Respondent(s)


                                 Through :- None

Coram:       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                      ORDER

1. By the medium of this petition under section 561-A Cr.P.C (now

482 Cr.P.C), the petitioner has assailed the order dated 12.09.2019 passed by

learned City Judge, Jammu in execution petition, titled "Jasmeet Kaur v/s

Harvinder Singh".

2. It is contended by the petitioner that the respondents had filed

application under Section 488 Cr.P.C seeking maintenance and the petitioner

appeared before the trial court and also filed objections to the said application.

The learned trial court directed the petitioner to pay Rs. 3,000/- per month as

maintenance to the respondents. The respondents, thereafter, filed an execution

petition under section 490 Cr.P.C for payment of outstanding arrears of Rs.

30,000/- It is further stated by the petitioner that when only a sum of Rs.

3,800/- was outstanding against him, the petitioner was sent to the judicial

custody by the trial court. The petitioner has assailed the order impugned

primarily on the ground that the learned trial court should have resorted to the

procedure as prescribed under Section 488(3) Cr.P.C and should not have sent

the petitioner to judicial custody.

3. Mr. Tarun Sharma, learned counsel appearing for the petitioner

vehemently argued that the order impugned was passed without affording

proper opportunity of being heard to the petitioner.

4. Heard and perused the order impugned.

5. A perusal of the order impugned reveals that the respondents had

laid a motion by filing an application, in which it is stated that in terms of order

dated 12.09.2015, the petitioner was under obligation to pay maintenance to the

respondents. However, the petitioner was avoiding payment of arrears of

maintenance and the outstanding amount of maintenance till 12.07.2019 was to

the extent of Rs. 30,000/- . So, the same be recovered from the petitioner.

6. It is further revealed that the petitioner could not convince the trial

court for non-payment of the arrears on account of maintenance and because of

that reason the petitioner was sent to the Judicial Custody. The instant case is

squarely covered by the judgment passed by Coordinate Bench of this Court in

"Dev Raj vs. Savita Devi and anr.'", reported in MANU/JK/0090/2006,

wherein in paragraph 5, it has been held as under:

5. In the present case the learned Magistrate in utter disregard of the provisions made in Section 488(3) of Cr.P.C. passed the orders impugned for sentencing the petitioner without having first issued the warrants for levying the amounts due. This apart the sentence of the petitioner was even extended beyond the period prescribed resulting into his unlawful detention in the prison. Had the learned Magistrate taken the trouble of going through the provisions of Section 488(3) Cr.P.C. the petitioner would have been saved from the agony of remaining in incarceration. The orders impugned cannot be anything but a gross abuse of process of law. Even the order of the learned Sessions Judge, Udhampur dated 05.11.2004 dismissing the revision petition of the petitioner is legally unsustainable. To

the least it was expected from the learned Sessions Judge to have tested the legality of the orders impugned on the touchstone of the provisions of law before dismissing the revision of the petitioner.

7. In the instant case also, no warrants for recovery of amount was

issued and straightway the petitioner was sent to the judicial custody without

resorting to the procedure as envisaged under Section 488(3) Cr.P.C.

8. In view of this, the present order is found to be contrary to law, as

such, the same set aside. In the event, the petitioner fails to liquidate the arrears

as directed by the learned City Judge, Jammu, the learned City Judge, Jammu

shall be at liberty to proceed in accordance with law.