Recently, the Allahabad High Court ruled that in cases of non-payment of maintenance, the Magistrate does not have the power to issue an arrest warrant straight away without first levying a fine u/s 421 of CrPC.

In this case, the applicant’s wife along with the doctor had filed an application u.s 125 of CrPC in Family Court seeking maintenance and the same was allowed.

Since the husband was a handicapped person, he was unable to pay the maintenance and the court issued a recovery warrant asking him to pay Rs 1,65000 to the wife. But as the husband was unable to do so, he was sent to jail.

The husband then moved the High Court against the Family Court’s order.

The High Court noted that according to sub-section 3 of Section 125 of CrPC, in the event of failure on part of any person who was unable to comply with an order granting maintenance the Magistrate can issue an order levying a fine.

However, the court clarified that a Magistrate has no jurisdiction to issue an arrest warrant against that person straight away without first trying to recover the maintenance amount as per provisions of Section 421 of CrPC like by attachment and sale of property of the defaulter.

As per the court, the Family Court, Kasganj did not follow the established procedure and proceeded to set aside the impugned order.

Case: Vipin Kumar vs State of UP & Anr