Arrest-125 3 CrPC -after 2.5 years- condonation- Reason - Advocates misconduct
3 months ago
Respected Learned Counsels,
Filed a MC suit on Dec 2019.
The Maintenance order was passed in District Family Court on Apr 2021.
Inspite of repeated request made by the Petitioner Wife to Petitioner’s advocate ADV1 who handled this case, to apply for Execution, the advocate ADV1 did not apply for Execution. He did not cooperate with the Petitioner. He cited various reasons from family function to heart attack and dragged on.
After 1 year 8 months, i.e: on March 2023, Petitioner's advocate ADV1 called the Petitioner and lied that the Respondent Husband has took away the judgement and it is missing. He said he will call us once it is found.
Now on Jan 2024 the Petitioner hired another Advocate ADV2 , who took 'Copy of Document' and found out maintenance order was present and not missing.
Can the Petitioner's new Advocate ADV2 put a C.M.P for enforcing execution by arrest u/s 125(3) Cr. P.C , with condonation of delay citing the reason as Professional Misconduct of ex-Advocate ADV1.?
Thanks in advance for your answers
A Lawyer is not above the law. If a Lawyer breaks the law, he or she shall face the same legal consequences an ordinary person faces for the same cause of action. As per sub-section (3) of Section 125 CrPC , no warrant shall be issued for the recovery of any amount due under this section unless an application is made to the Court to levy such amount within one year from the date on which it became due. Allahabad High Court while addressing a matter regarding recovery of maintenance amount (Mohammad Usman v. State of U.P., 2021 SCC OnLine All 640, decided on 31-8-2021] expressed that, “Sentencing to jail can only be seen as a means of recovering the amount of arrears and not a mode of discharging liability.” High Court also observed that the scope of Sections 125(3) and 128 of the Code being different and the first proviso to Section 125(3) creating an interdict only on issuance of a warrant for recovery under Section 125(3), the said period of limitation of one year cannot be held to create a fetter on the right to claim enforcement under Section 128. The provisions contained under Section 125(3) of the Code and the first proviso thereto again came up for consideration in Poongodi v. Thangavel, (2013) 10 SCC 618, and it was held that the first proviso to Section 125(3) does not create any bar or fetter on claiming arrears of maintenance and it neither extinguishes nor limits entitlement to arrears of maintenance. Given the above averments of the Courts, new Advocate ADV2 put a C.M.P for enforcing execution by arrest u/s 125(3) Cr. P.C , with condonation of delay citing the reason as Professional Misconduct of ex-Advocate ADV1. Apart from this, you can file a complaint under Sec.35 of the Advocates Act, 1961 against the concerned Lawyer(ADV-1) over alleged professional misconduct before the respective Bar Association and the State Bar Council for taking necessary action against the concerned Advocate.
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