The issuance of a Non-Bailable Warrant in maintenance cases must follow a procedural sequence of summons and bailable warrants to ensure compliance with due process and personal liberty protections.

ORDER

Prologue:

This Criminal Revision Case is directed against the order dated 13.07.2023 passed by the learned Judicial Magistrate No.I, Kovilpatti in Crl.M.P.No.800 of 2023 in M.C.No.4 of 2016, whereby the learned Judicial Magistrate, in the course of execution of a maintenance order, issued a Non-Bailable Warrant (NBW) against the revision petitioner/husband for alleged wilful default in payment of arrears of maintenance. The petitioner confines the challenge to the legality and propriety of the issuance of NBW, asserting that the same was passed in violation of procedural safeguards and contrary to settled legal principles under the Code of Criminal Procedure, 1973.

2. The grievance of the petitioner is not against the maintenance order per se which stands independently challenged before the learned Sessions Court, Thoothukudi, in Crl.R.No.14 of 2022 but solely against the coercive step of issuing NBW, which, according to him, was done mechanically and without following the mandated sequence of summons, bailable warrant, and only thereafter, non-bailable warrant.

Gist of the impugned order of the learned Trial Court:

3. The first and second respondents (wife and daughter of the petitioner) filed Crl.M.P.No.800 of 2023 seeking enforcement of the maintenance order passed in M.C.No.4 of 2016. The learned Judicial Magistrate No.I, Kovilpatti, by order dated 26.07.2022, had directed the petitioner-husband to pay maintenance of Rs.6,000/- (Rupees Six Thousand only) per month to the first respondent (wife) and Rs.4,000/- (Rupees Four Thousand only) per month to the second respondent (daughter) till she attained majority, besides arrears within stipulated time.

4. As the petitioner failed to comply with the said order, the respondents moved the execution petition claiming arrears of Rs. 5,14,000/- (Rupees Five Lakhs and Fourteen Thousand only) comprising Rs.4,26,000/- (Rupees Four Lakhs and Twenty Six Thousand only) for 71 months due to the wife and Rs.88,000/- (Rupees Eighty Eight Thousand only) for 22 months due to the daughter. The petitioner, despite service of summons, failed to clear the arrears or appear consistently before the Court.

5. The learned Magistrate, held that under Section 125(3) Cr.P.C., 1973, imprisonment up to one month can be imposed for each month of default, and that a common application covering several months’ arrears is maintainable. Observing that the petitioner had willfully defaulted for more than a year despite having means, the learned Magistrate issued a Non-Bailable Warrant to secure his presence.

Grounds of Revision:

6. The learned Trial Court’s order is contradictory, as the respondents claimed arrears for 71 months, but the Magistrate issued NBW referring only to non-payment for one year, making the relief claimed and granted irreconcilable. The learned Magistrate failed to appreciate the distinction between Section 125(3) and Section 128 Cr.P.C., 1973. While the former limits execution for one year’s arrears, the latter allows unlimited recovery through distraint warrant. The learned Magistrate issued a distress warrant under Section 125(3) without clarifying the provision invoked.

7. The impugned order is silent about the section under which it was passed. Instead of issuing a distraint warrant under Section 128 Cr.P.C., 1973, the learned Magistrate wrongly issued a distress warrant under Section 125(3) Cr.P.C., 1973, vitiating the proceedings. The maintenance order was not from the date