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2003 DIGILAW 1353 (AP)

G. Ramachander Rao v. G. Padma

2003-11-04

C.Y.SOMAYAJULU

body2003
C. Y. SOMAYAJULU, J. ( 1 ) AGGRIEVED by the order dated 4-9-2003 passed in Criminal M. P. No. 195 of 2003 in M. C. No. 15 of 2000 by the judge, Family Court, Warangal, respondent in the said petition preferred this revision. ( 2 ) RESPONDENTS 1 and 2 obtained order of maintenance in M. C. No. 15 of 2000 against the petitioner and filed Criminal m. P. No. 195 of 2003 for enforcement of the said order. Notice was ordered and the petitioner was asked to appear on 4-9-2003. When the petitioner appeared on 4-9-2003 the learned Judge made the following order:"respondent called present and stated that he could not pay the arrears amount. Therefore, respondent is arrested and ordered to be sent to imprisonment for a period of one month or until he makes payment of arrears of Rs. 2,000. 00. The oifice is directed to prepare Committal Warrant and place it for signature and seal of Court. Accordingly, this petition is allowed. " ( 3 ) THE contention of the learned counsel for the petitioner is that the petitioner can be sent to prison only if he fails to show sufficient cause for not complying with the order of maintenance and since no opportunity was given to the petitioner for showing cause order of the Trial Court, ordering arrest of the petitioner on the day on which he was asked to appear is improper and is liable to be set aside. ( 4 ) I find considerable force in the contention of the learned Counsel for the petitioner. As per Section 125 (3) of the criminal Procedure Code, if a person ordered to pay maintenance, fails without sufficient cause to comply with the order, he could be sent to prison. In this case, the petitioner was directed to be present on 4-9-2003. So the petitioner ought to have been given an opportunity of filing a counter in reply to the claim by the respondents 1 and 2 in criminal M. P. No. 195 of 2003. Only on satisfying that there was no sufficient cause for the petitioner in failing to pay the maintenance, the Court could pass an order sending the petitioner to prison. Only on satisfying that there was no sufficient cause for the petitioner in failing to pay the maintenance, the Court could pass an order sending the petitioner to prison. But in this case, since the petitioner was ordered to be sent to prison without affording an opportunity of explaining the reasons for his failure to comply with the order, the order directing him to be sent to prison is liable to be set aside and the same is accordingly set aside. The petitioner is directed to file his counter in the Criminal M. P. No. 195 of 2003 in M. C. No. 15 of 2000 on or before 14-11-2003. Thereafter, the learned Family court shall dispose of the case on merits before 1-12-2003. ( 5 ) THIS Criminal Revision Case is accordingly ordered.