Chapter IX
Section 128 CrPC: Enforcement of order of maintenance
New Law Update (2024)
Section 147 BNSS
TRIAL COURT
Any Magistrate
Punishment
Procedural – Maintenance / Compensation
Cognizable?
Bailable?
Compoundable?
Bare Act Text
A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be, shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be, is to be paid. Such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or, as the case may be, expenses due.
Important Sub-Sections Explained
Landmark Judgements
Rajnesh v. Neha (2021):
This Supreme Court judgment laid down comprehensive guidelines on the payment of maintenance, including interim maintenance, quantum, date from which maintenance is payable, and the enforcement mechanism. It emphasized the need for a standardized approach to avoid delays and ensure timely compliance with maintenance orders, thereby strengthening the practical application of Section 128 CrPC.
Badshah v. Urmila Badshah Godse (2014):
The Supreme Court, while primarily dealing with Section 125 CrPC, reiterated the beneficial nature of maintenance provisions, advocating a liberal interpretation to achieve their social objective of preventing vagrancy and destitution. The principles laid down in this case regarding the entitlement and spirit of maintenance orders indirectly bolster the importance of their effective enforcement under Section 128 CrPC.
Draft Format / Application
IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS/METROPOLITAN MAGISTRATE AT [CITY/DISTRICT]
MISC. CRIMINAL APPLICATION NO. [____] OF [YEAR]
IN THE MATTER OF:
[NAME OF APPLICANT/WIFE/CHILD]
Son/Daughter/Wife of [FATHER/HUSBAND’S NAME]
Resident of [APPLICANT’S ADDRESS]
… APPLICANT
VERSUS
[NAME OF RESPONDENT/HUSBAND]
Son of [FATHER’S NAME]
Resident of [RESPONDENT’S ADDRESS]
… RESPONDENT
APPLICATION UNDER SECTION 128 OF THE CODE OF CRIMINAL PROCEDURE, 1973 FOR ENFORCEMENT/EXECUTION OF MAINTENANCE ORDER
MOST RESPECTFULLY SHOWETH:
1. That the Applicant is the [wife/minor child/father/mother] of the Respondent and had filed an application for maintenance against the Respondent under Section [125 CrPC / Hindu Marriage Act / PWDV Act] before this Hon’ble Court/Court of [Name of Court where order was passed].
2. That this Hon’ble Court, after hearing both parties, was pleased to pass an order of maintenance dated [Date of Order], directing the Respondent to pay a sum of Rs. [Amount] per month as maintenance to the Applicant, effective from [Date from which maintenance is payable]. (A certified copy of the said order is annexed herewith as ANNEXURE A).
3. That the Respondent has failed and neglected to comply with the said order of maintenance dated [Date of Order] and has not paid the maintenance amount as directed. The arrears of maintenance due from the Respondent till date amount to Rs. [Total Arrears Amount].
4. That despite repeated requests and demands made by the Applicant, the Respondent has willfully neglected to pay the outstanding maintenance amount, thereby compelling the Applicant to approach this Hon’ble Court for enforcement of its order.
5. That the Respondent is currently residing at [Respondent’s Address] within the territorial jurisdiction of this Hon’ble Court and is well able to pay the maintenance amount as ordered.
6. That the Applicant is entitled to enforce the said order of maintenance under Section 128 of the Code of Criminal Procedure, 1973.
PRAYER:
It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to:
a) Issue appropriate process for the enforcement/execution of the order of maintenance dated [Date of Order] against the Respondent.
b) Direct the Respondent to pay the outstanding arrears of maintenance amounting to Rs. [Total Arrears Amount] along with future maintenance as per the order.
c) Take appropriate action against the Respondent for non-compliance with the order of maintenance, including issuance of a warrant for levy of fine or warrant for imprisonment, as deemed fit.
d) Pass any other and further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case, in the interest of justice.
APPLICANT
THROUGH COUNSEL
[NAME OF COUNSEL]
ADVOCATE
PLACE: [CITY]
DATE: [DATE]