The High Court observed that in event of any failure on part of a person to comply with a court’s order to pay maintenance allowance then the court course of courts is to first issue a warrant for the levy of fine as mentioned u.s 421 of CrPC for purpose realization of amount.

With this, the 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.

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 same was not done, the husband was sent to jail.

The husband moved the High Court against the Family Court order.

In appeal, 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.