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Lovely Baiju, W/o Baiju – Appellant
Versus
State Of Kerala – Respondent
ORDER :
This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (`BNSS’ for short), seeking the relief to quash the impugned order of issuing notice to the 2nd respondent dated 23.01.2024, Annexure A3, by the learned Judicial Magistrate of First Class, Njarakkal, in CMP.No.116/2024 in MC.No.67/2021.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents and the legal provisions on the point.
3. Short facts: The petitioner herein, who is the petitioner in M.C.No.67/2021 on the files of Judicial Magistrate of First Class, Njarakkal, filed CMP.No.116/2024, Annexure 2, in the above M.C to issue distress warrant against the respondent and to recover and disburse the monthly maintenance and rent covered by the order in M.C.No.67/2021 dated 03.12.2022, produced as Annexure 1. According to the learned counsel for the petitioner, when Annexure 2 was filed, the learned Magistrate ordered notice to the respondent and the said order is Annexure 3 dated 27.08.2024. The point canvassed by the learned counsel for the petitioner is that there is no procedure envisaged either
The court clarified that while notice is not mandatory before issuing a distress warrant for maintenance recovery, it may be necessary to determine if non-compliance was without sufficient cause.
The main legal point established in the judgment is the maintainability of applications under Section 125(3) of Cr.P.C. for violation of court orders.
The magistrate can impose a maximum of one month imprisonment for each month of default in maintenance payments under Section 125(3) of the Cr.P.C.
The court emphasized the necessity for judicial application of mind in issuing notices under preventive sections to protect personal liberty and avoid abuse of process.
Issuance of arrest warrants for recovery of maintenance arrears is illegal; enforcement must comply with statutory provisions protecting individual dignity and liberty.
The court established that non-bailable warrants for maintenance enforcement cannot be issued without prior attempts to recover dues through established procedural mechanisms under the Code of Crimin....
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