Non-Bailable Warrant Can't Be Issued Against A Man In Maintenance Proceedings Under Section 125(3) CrPC: Amicus Tells Kerala HC
In case concerning issuance of non-bailable warrant for non-payment of maintenance decreed under CrPC, Amicus Curiae Advocate Paravathi Menon A appointed in the matter told the Kerala High Court on Monday (January 27) that there is no provision for issuing non-bailable warrant for enforcement of a maintenance order under Section 125(3) of Cr.P.C.Section 125 CrPC (Section 144 BNSS) pertains...
In case concerning issuance of non-bailable warrant for non-payment of maintenance decreed under CrPC, Amicus Curiae Advocate Paravathi Menon A appointed in the matter told the Kerala High Court on Monday (January 27) that there is no provision for issuing non-bailable warrant for enforcement of a maintenance order under Section 125(3) of Cr.P.C.
Section 125 CrPC (Section 144 BNSS) pertains to Order for maintenance of Wives, Children and Parents. It empowers a magistrate to enforce compliance with maintenance orders through the issuance of distress warrants and, when necessary, arrest warrants. For context, a distress warrant can be issued to enforce a maintenance order
Section 125 CrPC states that if any person having sufficient means neglects or refuses to maintain his wife/legitimate or illegitimate minor child whether married or not who are unable to maintain themselves, his legitimate or illegitimate child (not being a married daughter) who has attained majority who by reason of any physical or mental abnormality or injury are unable to maintain themselves or his father or mother who are also unable to maintain themselves; then the Magistrate upon proof of such neglect or refusal, can order such person to make a monthly allowance for the maintenance of such persons his wife or such child, father or mother, at a monthly rate as the Magistrate thinks fit.
Section 125(3) states that if the person so ordered fails without sufficient cause to comply with the order, the 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.
The Amicus submitted before Justice Kauser Edappagath that if the distress warrant is unexecuted, only an execution warrant as per Form 18 in Schedule 2 of Cr.P.C can be issued. This form is not classified as bailable or non-bailable the amicus said.
The court was hearing a matter wherein issue was raised when a mother and daughter approached the High Court for enforcement of a non-bailable warrant issued against the husband/father for non-payment of maintenance amount. The husband had challenged the non-bailable warrant issued against him by saying that non-bailable warrant was issued against him without issuing a distress warrant.
The High Court meanwhile raised the following questions of law and sought the help of Amicus Curiae:
- Can Magistrate exercising power under Section 144(3) of BNSS/ Section 125(3) of Cr,P.C issue non bailable warrant instead of or in addition to distress warrant.
- Can the Magistrate exercising power under Section 144(3) of BNSS/ Section 125(3) of Cr.P.C issue non bailable warrant before passing sentence of imprisonment?
- Can the Magistrate exercising power under Section 144(3) of BNSS/ Section 125(3) of Cr.P.C issue non bailable warrant to enforce the sentence?
Can a person against whom a sentence of imprisonment is passed under Section 144(3) of BNSS/Section 125(3) of Cr.P.C be treated as “an escaped convict” falling under Section 75 of BNSS/Section 73 of Cr.P.C.?
The Amicus while referring to judgments of various High Court submitted that the general rule is that a distress warrant to levy fine, either by attaching movable property or through Collector for land recovery, has to be first issued before ordering a sentence of imprisonment. However, some cases had provided exceptions. For eg: if the defaulter had no property or has admitted inability to pay, the Magistrate may directly proceed with imprisonment.
The Amicus pointed out that there can be considerable delay in following the procedure sequentially – issuance of a distress warrant, waiting for its outcome, sentencing the respondent to imprisonment, issuing a warrant. She added that this could undermine the objective of S.125 which is a social welfare remedy aimed at preventing vagrancy and destitution. She emphasized that even after a sentence of imprisonment is imposed for non-payment, only an execution warrant can be issued as per the provisions of the Act.
The court after hearing the submissions orally remarked that issuance of non-bailable warrant is the practice followed by the Courts all over the State.
“The practice now being followed is to be discontinued. Next question is how effectively this could be done,” the court orally said. It further said that the new system that is to be envisaged should be effective in the sense that the beneficiaries receive the amount entitled to them within a limited time.
The Amicus meanwhile submitted that the Court should consider whether the warrants have to be issued sequentially as per strict interpretation of law or both the warrants can be issued simultaneously.
She submitted that an order or maintenance is made only after considering all relevant evidence including the respondent's ability to make the payment.
She pointed to the 1993 decision of the Orissa High Court in Rajendra Kumar Pradhan v Smt. Pramila Pradhan wherein the Court held that in exceptional cases based on the facts of the case, where issuing a distress warrant would be futile like if the defaulter has no property or has admitted inability to pay, the Magistrate may directly proceed to imprisonment.
The Amicus submitted that the Orissa High court had clarified that a Magistrate may issue a non-bailable warrant of arrest if the person fails to comply with the maintenance order after the execution of the distress warrant. The court had said that non-bailable warrant is used to secure the presence of the defaulting person for imprisonment, which can be imposed for non-payment of the maintenance amount, she added.
In essence, while the distress warrant is the primary mode for recovery of the unpaid maintenance, the non-bailable warrant of arrest is used if the distress warrant does not result in full recovery, and the person continues to default, the amicus submitted. She submitted that the Orissa high court had also emphasized that the issuance of the non-bailable warrant is not necessarily dependent on the completion of the distress warrant process, but rather on the execution of the distress warrant, as stated in the second part of Section 125(3).
The Amicus also referred to another decision of the Orissa High Court in Naresh Chandra Panda v Smt. Minarini Panda and Others. (2017) where it affirmed the action of Magistrate issuing a distress warrant and non bailable warrant simultaneously for non-payment of maintenance on the ground that the Magistrate's order had a condition that the "non-bailable warrant would not be executed if the arrear amount was realized through distress warrant".
The Amicus further argued that no fixed time frame for execution of distress warrant is another challenging in enforcing the rights of the beneficiaries.
The Court after noting that an effective system is to be formed for enforcing the maintenance orders of the Court impleaded the State Government in the matter and posted the case after two weeks.
Case Title: S. Mumthas and Another v M. Nizar @ Nizarudeen and Another
Case No: OP (Crl.) 802/ 2024