IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.941 of 2011 Phanindra Kumar, son of Saryug Prasad, resident of village – Bhathar, P.S. – Tharthari, District – Nalanda …………. Petitioner Versus 1. The State Of Bihar, 2. The Superintendent of Biharsharif Jail, Nalanda, 3. Sanjiva Kumari, wife of Phanindra Kumar, daughter of Dwarika Prasad, resident of village – Nirmalbigha, P.S. Telhara, District – Nalanda ……….. Respondents. ---------------------------------- 4/ 12.12.2011 Heard learned counsel for the parties. We had issued notice to the private respondent no. 3, the strange wife of the petitioner. She appeared. A counter affidavit is on record as filed by her but no copy thereof was served either on the State or the learned counsel for the petitioner. We, accordingly, by order dated 24.11.2011, adjourned the matter to enable counsel for the private respondent no. 3 to serve copy of the counter affidavit on the petitioner and the State so that rejoinders could be filed. Today, when the matter was called out, first, no one appeared on behalf of respondent no. 3, learned counsel for the petitioner and the State pointed out that no counter affidavit has been served on them as yet. When we were passing over the matter, Mr. Mahesh Prasad, Advocate, got up and on instruction from Mr. Revti Kant Raman, learned advocate on record for respondent no. 3, submitted that the client had taken back the file with ‘No Objection Certificate’ and, as such, they had no instruction in the matter any more. No one else appeared for the private respondent no. 3. In such circumstances, we do not 2 think it proper to let this matter linger any further as in our view, the matter stands concluded by Division Bench judgment of this Court in the case of Laljee Yadav Vs. The State of Bihar reported in 2011 (4) PLJR 248. The petitioner is aggrieved by order dated 30.6.2011 passed by the Principal Judge, Family Court, Nalanda at Biharsharif in Misc. Case no. 19 of 2008 and has been remanded to judicial custody for allegedly non-payment of maintenance as awarded under section 125(3) of the Code of Criminal Procedure (hereinafter referred to as ‘the Act’). Mr. Ajay Kumar Thakur, learned counsel for the petitioner submits that such a detention order, which amounts to punishment, cannot be passed without following the procedure under section 125(3) of the Code. Merely because there has been a default in compliance of an order of maintenance, does not give any jurisdiction to any court to order the detention of the offending party. This matter and the law in that regard have been elaborately discussed by a Division Bench of this Court in the case of Laljee Yadav (supra). In view of the law as laid down by this Court, we are constrained to hold that the order dated 30.6.2011 as impugned and subsequent orders remanding the petitioner to judicial custody in a mechanical manner just to enforce the order cannot be sustained. There is no such power in the court. We, accordingly, set aside the order dated 30.6.2011 as passed by the Principal Judge, Family Court, Nalanda at 3 Biharsharif in the case aforesaid and subsequent orders of remand. The learned judge would be well advised to follow the procedure as prescribed by law and dealt by us in the case of Laljee Yadav (supra). By order dated 20.9.2011, we had directed for release of the petitioner, which we are told, the petitioner has been released. In that view of the matter, we confirm the interim order and make it absolute subject to any order that may be lawfully passed by the learned judge in question. The writ application is accordingly disposed of. Anil/ ( Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.)