Under Section 144(3) BNSS, a court must first determine if there is sufficient cause for non-payment of maintenance and attempt recovery via property attachment before ordering the detention of the defaulter in prison.

THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 07.07.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The respondent in M.C.No.29/2022 has filed this original petition under Article 227 of the Constitution of India, against the order passed by the Family Court, Thodupuzha, on 21.04.2026, directing the issuance of warrant against him, for realisation of the arrears of maintenance due to the petitioners in that M.C. According to the petitioner herein, the aforesaid order was passed by the court below without considering the question whether there was sufficient cause for the non-compliance of the order of the payment of arrears of maintenance. It is further submitted that the court below had not considered the question whether the amount due is to be realised by resorting to attachment of the properties of the petitioner.

2. Heard the learned counsel for the petitioners and the learned counsel for the respondent.

3. Section 144 (3) of the BNSS, which is analogous to Section 125(3) of Cr.P.C reads as follows:-

“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.”

4. It is clear from the aforesaid provision of law that the court concerned has to first of all decide whether there is sufficient cause for the non-compliance of the order of payment of maintenance, before proceeding with the enforcement of the same by the issuance of a warrant. So also, the warrant contemplated thereunder is one intended to attach the properties of the defaulter. The question of arresting the defaulter, and putting him to prison would arise only when the court is satisfied that there are still amounts remaining unpaid, even after the execution of the warrant. Of course, in an appropriate case the court could look into the contentions in the disclosure affidavit about the absence of movable or immovable properties of the defaulter and conclude that no purpose could be achieved by issuing a warrant of attachment of the properties of the defaulter. In that case, there should be a definite finding in that regard to dispense with the requirement to issue warrant of attachment.

5. Having regard to the nature of the contentions raised by the petitioner in this original petition, I deem it appropriate to dispose of this original petition remanding back the case to the court below with the following directions:-

1) The Family Court, Thodupuzha, has to first of all consider the question whether there is sufficient cause for the non-compliance of order of the payment of maintenance by the respondents in M.C.No.29/2022, and to arrive at a finding in that regard.

2) Subject to the finding on the aforesaid aspect, the Family Court has to decide whether the amount due could be realised by the attachment of the properties of the defaulter.

3) If the Family Court finds that the amount due to the petitioners in that M.C. could not be realised by the attachment of the properties of the defaulter, then steps are to be taken for detention of the respondent in that M.C. in prison, for the period prescribed under Section 144(3) BNSS (Section 125(3) Cr.P.C) in respect of the