Mumbai High Court Judgement under Art. 227 of the Constitution read with S. 482 of the Cr.P.C.
Trial court & session court has dismissed the petition u/s 127(1) putting a condition of deposit of all past arrears so as to proceed with the petitioner's application for modification.
"Even for ordering payment or depositing of the amount the learned trial Judge ought to have,first given opportunity to the defaulter to show sufficient cause and establish his changed circumstances and to find out the bona fides about his claim of inability to pay maintenence/ arrers or discharge the liability."
I see no provision either u/S. 125(3) or S. 127(1) Cr.P.C. to enable the trial Judge to proceed with these applications on a condition of deposit of part or whole of the arrears. The trial Judgemust act according to the Code of Criminal Procedure and it has no other discretionary or inherent powers under the Code. The inherent powers u/S. 482 are available only to the High Court. In the absence of any provision therefor, the learned trial Judge was wrong in directing the petitioner to deposit the amount of arrears as a condition precedent to proceed with his application for modification of the impugned order.
"I have particularly underlined the words "without sufficient cause" to emphasise that even while proceeding to direct recovery by a coercive process or for sending a defaulter to prison the trial Judge must afford opportunity to the defaulter to show cause why the warrant for levying the amount or for sentencing him to imprisonment should not be issued It is only if the defaulter fails to show sufficient cause that he may then take the steps for recovery by coercive process or by sentencing to imprisonment"
"In the result therefore both the orders of the Courts even though concurrent in nature deserve to bequashed and set aside"
