Section 125(3) of the Criminal Procedure Code is reproduced below:
“(3) If any person so ordered fails 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 for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”
It should be clear from the above provision that firstly an application is required to be made to the Magistrate for levying the monthly maintenance allowance which has not been paid. From your question, it appears that no such application has been made so far by your wife.
Secondly, on such application being made, the Magistrate may issue a warrant for levying the amount due, if the person has failed without sufficient cause to comply with the maintenance order. So, when such an application is made, you may try to show sufficient cause explaining the difficulties that you are facing and also the fact that you have already made half payment of the arrears and that you are willing to make the remaining half payment in instalments. Or, still better, you may deposit the remaining half amount of arrears on such application being made. In such a situation, if the Magistrate is satisfied with the sufficient cause being shown by you, he may not pass any order with regard to your arrest and sentence.
So, generally speaking, if you show your good intention to make payment of the maintenance allowance, including the arrears, chances of arrest and jail would be negligible. The object of the above provision is to ensure that the maintenance is paid timely as per the order passed by the Magistrate. By sending you to the jail, the payment of maintenance by you would become even more difficult (since you would not be earning for the period while you are in custody), so, generally, arrest and jail are not the preferred options for the court.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
.
