Madras High Court Quashes Non-Bailable Warrant In Maintenance Case; Says Trial Courts Must Follow Sequence U/S 87 CrPC
While setting aside a Non-Bailable Warrant issued against a husband for not paying maintenance arrears, the Madras High Court recently highlighted the importance of following procedure while issuing such orders. Justice L Victoria Gowri observed that the object of Section 125 CrPC was social justice and the courts should ensure that the maintenance orders are implemented while...
While setting aside a Non-Bailable Warrant issued against a husband for not paying maintenance arrears, the Madras High Court recently highlighted the importance of following procedure while issuing such orders.
Justice L Victoria Gowri observed that the object of Section 125 CrPC was social justice and the courts should ensure that the maintenance orders are implemented while safeguarding the liberty of individuals from arbitrary arrest. The court highlighted the balance between enforcement and fairness was the hallmark of criminal jurisprudence.
Noting the procedural irregularities involved in the case, the court observed that it underscored the need for trial courts to record the provisions under which the warrants are issued and to follow the statutory sequence before resorting to non bailable warrant.
“This case underscores the need for the learned Trial Courts to distinctly record under which provision warrants are issued, whether punitive under Section 125(3) or coercive under Section 128, and to follow the statutory sequence under Section 87 Cr.P.C., 1973, before resorting to non-bailable warrants,” the court said.
The court was hearing a criminal revision petition filed by a husband challenging the order of the Judicial Magistrate, by which the court issued a Non-Bailable Warrant (NBW) against him in connection with the execution of a maintenance order.
The wife and daughter had filed the maintenance petition in which the court had ordered the husband to pay Rs. 6,000/ to the wife and Rs. 4,000/ to the daughter. Since the husband failed to comply with the order, the wife and daughter filed an execution petition claiming arrears. Holding that the husband had wilfully defaulted on the payment for more than a year despite having the means, the Magistrate issued NBW.
Challenging this, the husband argued that under Section 87 of CrPC, the sequence of process was summons, followed by bailable warrant, and then non-bailable warrant only if the previous two fail. It was argued that the issuance of NBW straightaway was contrary to law and violated the principles of natural justice. It was also argued that proceedings under Section 125 and 128 CrPC and under the Domestic Violence Act are quasi-civil/quasi-criminal and thus coercive measures like issuance of NBW must be exercised with restraint.
The husband also argued that Section 125 CrPC allowed imprisonment for arrears only up to one year, and since the alleged arrears in the present case were for 71 months, a distraint warrant under Section 128 CrPC should have been issued. The husband also argued that since the maintenance order by the Magistrate was under revision, initiation of coercive execution proceedings by the same Magistrate was improper and might result in multiplicity.
The wife objected to the plea and said that the NBW was issued after due notice and hearing. It was submitted that issuance of NBW to secure the defaulter's presence was valid, as he had failed to pay any amount despite having sufficient means.
The court noted that the Magistrate's order was devoid of any specific reference to the section under which it was issued. Highlighting the difference between “distress warrant” and “distraint warrant”, the court held that while a distress warrant under Section 125(3) was punitive, the distraint warrant under Section 128 was civil enforcement-oriented, meant to attach property to recover arrears.
In the present case, the court noted that though the husband's default was established, the records did not show that the Magistrate issued a bailable warrant before resorting to NBW. The court also noted that the order failed to show why the husband's presence could not be secured otherwise.
At the same time, the court added that the husband could not seek total immunity. The court observed that the pendency of revision before the Sessions Court did not automatically stay the execution and the husband was obligated to pay the arrears of maintenance.
The court thus set aside the order issuing NBW, noting that the Magistrate should have issued a bailable warrant first and proceeded with the execution in accordance with the law. The court also directed the husband to deposit 50% of the admitted arrears within four weeks.
Counsel for Petitioner: Mr. G. Karuppasamy Pandiyan
Counsel for Respondent: Mr. B. Rajesh Saravanan
Case Title: A v. M and Another
Citation: 2025 LiveLaw (Mad) 461
Case No: CRL RC(MD)No.804 of 2023