1. The Petitioner is the husband against whom maintenance order has been passed U/s.20 of the Protection of Woman from Domestic Violence Act (DV Act). The Petitioner has challenged the order of maintenance in the Sessions Court in which the Petitioner has not obtained any stay of the order ordering maintenance U/s.20 of the DV Act. The husband breached the order of maintenance. Consequently, wife applied for execution of the order of maintenance. Hence the wife filed an application for issue of warrant for recovery of the maintenance amount. Consequent, NBW has been issued. The Petitioner has challenged the order of issuing NBW.

2. In his application the learned Judge observed that an appeal was preferred, but no stay was granted and that the husband (petitioner herein) was given ample opportunity to deposit interim maintenance but he was only binding time. Hence learned Magistrate granted the application of the wife and issued the NBW. He also directed that if the Respondent paid off the arrears of maintenance which was Rs.56,000/- he will be released at the time of the execution of the NBW. The amount of maintenance payable under the same order is now much more.

3. Counsel on behalf of the Petitioner has contended that the learned Magistrate has no powers to issue NBW under the DV Act.

4. The learned Special Public Prosecutor (Spl PP) has drawn my attention to Rule 6 of the DV Rules which relates to applications U/s.12 of the DV Act.

Section 12 of the DV Act runs thus:

(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

5. The wife in this case applied for reliefs under Sections 17 to 23 of the DV Act. The learned Magistrate granted order U/s.20. That is an order of maintenance.

The relevant part of Rule 6 (5) runs thus:

6. Application to the Magistrate. –

(5) The applications under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974).

6. Consequently under Rule 6(5) the order passed U/s.20 upon an application made U/s.12 would have to be enforced in the manner laid down in the Section 125 of the CrPC.

7. Further the Magistrate would have to follow the procedure U/s.28 (1) of the DV Act to which my attention has been drawn by the learned Spl PP. Section 28(1) of the DV Act runs thus:

28. Procedure. –(1) Save as otherwise provided in this Act, all proceedings under Sections 12,18,19,20,21,22 & 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973.

8. The provisions in the CrPC lay down that the Section 125 is to be r/w. along with Form 19 followed by Form 18.

The relevant part of Section 125 (3) runs thus:

125. Order for maintenance of wives, children and parents. –

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's (allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,) remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

9. Under sub section 3 upon failure to pay maintenance and committing breach of the order of maintenance the Magistrate will be entitled to issue an warrant. The warrant would be for levying the amount as a fine.

10. Counsel on behalf of the Petitioner drew my attention to Section 421 of the CrPC which deals with the warrant for levying of fine.

The relevant part of Section 421 runs thus:

421. Warrant for levy of fine. –

(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take