Order

21.02.2023

1. Petitioner through the medium of this petition seeks quashment of execution proceedings and impugned order dated 17.01.2023 passed by the Court of Learned Judicial Magistrate ( 2^nd Additional Munsiff) Jammu, in execution petition titled ‘Rimpi Bhagat v. Raman Taneja’ under section 12 of the Protection of Women from Domestic Violence Act, 2005 ( for short D.V. Act) asserting therein that the trial Court has issued non-bailable warrant/recovery warrant against the petitioner herein through SHO concerned for execution. It has been pleaded that warrant has been issued for recovery of the outstanding amount granted to the respondent Rimpi Baghat U/S 12 of D.V. Act,2005 on an application moved by respondent herein seeking recovery of maintenance allowance to the tune of Rs. 42000/-.

2. Learned counsel for the petitioner submits that the Ld. Magistrate has adopted a novel method for issuance of non-available warrant against the petitioner seeking recovery of the allowance granted in favour of respondent and further argued that the impugned order is required to be quashed for being abuse the process of Court.

3. On consideration of the scheme of DV Act, 2005 and Criminal Procedure Code, it comes to fore that the arrears of the allowance granted to a an aggrieved person Under Section 12 of the DV Act can be recovered in terms of Section 125 CrPC by issuance of recovery warrant, however ,this recovery warrant has to be issued in terms of section 421 CrPC as are issued for recovery of fine, therefore, the procedure adopted by the learned Magistrate vide impugned order is unknown under the Scheme of the law applicable on the subject. Issuing non-bailable warrant is not proper remedy for realization of amount U/S 23(1) of the DV Act, 2005.

4. The Magistrate cannot directly order arrest of the respondent by issuing a non-bailable warrant in view of the clear provision under the Criminal Procedure Code which lays down as to how the amount of maintenance, final or interim, is to be recovered. The Magistrate, could not have issued non-bailable warrant directly. He should have followed the procedure laid down in sub-section (3) of Section 125 and Section 421 of the CrPC. In the scheme of CrPC, in the first place, Magistrate is under an obligation to issue warrant for levy of the amount by attachment and sale of any moveable property. The other remedy available is to issue a warrant to the Collector of the District, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter. The Magistrate could have sentenced the petitioner 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 and remaining unpaid after the execution of the warrant, to imprisonment for a term which might extend to one month or until payment if sooner made.

5. Having said so, it is observed that the Magistrate was to issue a warrant for levying fine. If the whole of the amount was recovered by adopting the procedure under Section 421 of the CrPC, the question of putting the defaulter in prison did not arise. In case amount was not recovered or part of it was recovered and part of it was not recovered, then the question would have arisen as to how much sentence should be imposed on the defaulter as per the provision laid down in the Code of Criminal Procedure. The stage of issuing warrant comes only after sentencing and not before that.

6. A Magistrate cannot direct arrest of the defaulter by issuing non-

bailable warrant before taking cognizance of the offence, if an offence is committed under under Sub Section (1) of Section 31 of DV Act and cannot order non-bailable warrant for the failure to pay maintenance as has been done in this case. It is made clear that Magistrate can proceed against the defaulter for non-payment of the interim maintenance only as provided under Protection of Women from Domestic