Magistrates must follow statutory procedures for maintenance recovery but may issue non-bailable warrants if compliance is deemed impractical based on the debtor's asset status.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

THE HONOURABLE MR. JUSTICE SUNIL THOMAS THURSDAY, THE 7TH DAY OF DECEMBER 2017/16TH AGRAHAYANA, 1939 Crl.MC.No. 8911 of 2016 ---------------------------

C.M.P.NO.7950/2015 IN M.C.NO.45/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, CHERTHALA. PETITIONER: ------------------

SHABUMON, S/O.RAGHAVAN, 38 YEARS, THEKKEKOCHUKARIYIL, THIRUNELLOOR CHERTHALA, ALAPPUZHA DISTRICT.

BY ADVS.SRI.V.T.RAGHUNATH SMT.C.V.RAJALAKSHMI RESPONDENTS: -------------------------

1. KAVITHA, D/O.MOHANAN, 31 YEARS, MATTATHIL, CHERTHALA SOUTH, PANCHAYATH WARD 13, CHERTHALA, ALAPPUZHA DIST., PIN- 688 524.

2. AKASH (MINOR)

S/O.SHABUMON, MATATHIL, CHERTHALA SOUTH, PANCHAYATH WARD 13, CHERTHALA, ALAPPUZHA DIST., PIN - 688 524 REP. BY THE 1ST RESPONDENT KAVITHA

3. STATE OF KERALA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682 031.

R1 & R2 BY ADVS.SRI.P.ANUROOP SMT.V.K.SREENA R3 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

------------------------------------

APPENDIX PETITIONER(S)' ANNEXURES ------------------------------------------

ANNEXURE 1 TREATMENT RECORDS IN RESPECT OF THE PETITIONER ANNEXURE 2 TREATMENT RECORDS IN RESPECT OF THE FATHER OF THE PETITIONER ANNEXURE 3 TREATMENT RECORDS IN RESPECT OF THE SISTER OF THE PETITIONER ANNEXURE 4 CERTIFIED COPY OF THE ORDER IN CMP 7950/2015 IN MC 45/2012 DATED

7.10.2016 OF JFCM CHERTHALA RESPONDENT(S)' ANNEXURES --------------------------------------------

ANNEXURE R1-A COPY OF ORDER IN M.C.NO.45/12 ON THE FILE OF JFMC-II, CHERTHALA //True Copy// P.A. To Judge Bb SUNIL THOMAS, J.

..................................................... ......................................................

Dated this the 07^th day of December, 2017

O R D E R

The petitioner herein suffered an order of maintenance under Section 12 of the Domestic Violence Act (DV Act) in M.C.No.45/2012 of Judicial First Class Magistrate Court, Cherthala. In execution of the above order, non bailable warrant was issued to the petitioner herein, by order dated 07.10.2016, in C.M.P.No.7950/2015, which is under challenge in the present proceedings.

2. The above order is contested by the petitioner on a premise that the court below legally went wrong in straight away issuing non bailable warrant without complying with the procedure contemplated under Section 421 of the Cr.P.C. The contention of the learned counsel for the petitioner herein is that the statutory provision pre-supposes issue of warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender and without recourse to that, straight away issuing non-bailable warrant, was illegal. The learned counsel, to support that contention, relied on the decision of the Bombay High Court in Sachin Suresh Bodhale v. Sushma Sachin Bodhale [2015 KHC 3386]. The Bombay High Court, in that decision, had held, after referring to Section 421 of Code of Criminal Procedure that, clearly lays down the procedure for recovery of the amount of maintenance, final or interim. It was held that the Magistrate could not have issued non bailable warrant directly. He should have followed the procedure laid down in Section 421 of . It was held that in the scheme of the Code, in the first place, the Magistrate was under an obligation to issue a warrant for levy of the amount by attachment and sale of any movable property and the other remedy available was to issue a warrant to the Collector of the District, authorising him to recover an amount. Without adopting these procedures, straight away issuing warrant was per se illegal, contended the learned counsel for the petitioner.

3. Opposing the application, the learned counsel for the respondents contended that the court below was perfectly justified in issuing non bailable warrant. A perusal of the impugned order shows that on the date of passing the order, the respondent was present and