The Magistrate issuing NBW, therefore, seems to have
followed the Special Procedure for the arrest of the husband for non
payment of the maintenance ordered to be paid. Such procedure and
such procedural order is within the framework of Section 28(2) of the
DV Act and hence cannot be faulted as it is not seen to be illegal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.236 OF 2013
Sagar Sudhakar Shendge V/s. Mrs. Naina Sagar Shendge
CORAM : MRS. ROSHAN DALVI, J.
Date of Pronouncing the Order : 4 th April, 2013.
1. The Petitioner is the husband against whom maintenance
order has been passed U/s.20 of the Protection of Woman from
Domestic Violence Act (DV Act). The Petitioner has challenged the
order of maintenance in the Sessions Court in which the Petitioner has
not obtained any stay of the order ordering maintenance U/s.20 of the
DV Act. The husband breached the order of maintenance.
Consequently, wife applied for execution of the order of maintenance.
Hence the wife filed an application for issue of warrant for recovery of
the maintenance amount. Consequent, NBW has been issued. The
Petitioner has challenged the order of issuing NBW.
2. In his application the learned Judge observed that an appeal
was preferred, but no stay was granted and that the husband (petitioner
herein) was given ample opportunity to deposit interim maintenance
but he was only binding time. Hence learned Magistrate granted the
application of the wife and issued the NBW. He also directed that if the
Respondent paid off the arrears of maintenance which was Rs.56,000/
he will be released at the time of the execution of the NBW. The
amount of maintenance payable under the same order is now much
more.
3. Counsel on behalf of the Petitioner has contended that the
learned Magistrate has no powers to issue NBW under the DV Act.
4. The learned Special Public Prosecutor (Spl PP) has drawn my
attention to Rule 6 of the DV Rules which relates to applications U/s.12
of the DV Act.
Section 12 of the DV Act runs thus :
(1) An aggrieved person or a Protection Officer or any other
person on behalf of the aggrieved person may present an
application to the Magistrate seeking one or more reliefs under
this Act:
5. The wife in this case applied for reliefs under Sections 17 to
23 of the DV Act. The learned Magistrate granted order U/s.20. That is
an order of maintenance.
The relevant part of Rule 6 (5) runs thus :
6.Application to the Magistrate. –
(5) The applications under section 12 shall be dealt with and
the orders enforced in the same manner laid down under
section 125 of the Code of Criminal Procedure, 1973 (2 of
1974).
6. Consequently under Rule 6(5) the order passed U/s.20 upon
an application made U/s.12 would have to be enforced in the manner
laid down in the Section 125 of the CrPC.
7. Further the Magistrate would have to follow the procedure
U/s.28 (1) of the DV Act to which my attention has been drawn by the
learned Spl PP. Section 28(1) of the DV Act runs thus :
28. Procedure. –
(1) Save as otherwise provided in this Act, all proceedings
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under Sections 12,18,19,20,21,22 & 23 and offences under
Section 31 shall be governed by the provisions of the Code of
Criminal Procedure, 1973.
8. The provisions in the CrPC lay down that the Section 125 is
to be r/w. along with Form 19 followed by Form 18.
The relevant part of Section 125 (3) runs thus :
125. Order for maintenance of wives, children and parents. –
(3) 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:
9. Under sub section 3 upon failure to pay maintenance and
committing breach of the order of maintenance the Magistrate will be
entitled to issue an warrant. The warrant would be for levying the
amount as a fine.
10. Counsel on behalf of the Petitioner drew my attention to
Section 421 of the CrPC which deals with the warrant for levying of
fine.
The relevant part of Section 421 runs thus:
421. Warrant for levy of fine. –
(1) When an offender has been sentenced to pay a fine, the
Court passing the sentence may take action for the recovery of
the fine in either or both of the following ways, that is to say, it
may
(a) issue a warrant for the levy of the amount by attachment
and sale of any moveable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising
him to realise the amount as arrears of land revenue from the
movable or immovable property, or both, of the defaulter.
11. It is argued on behalf of the Petitioner husband that in this
case the Magistrate would follow u/s.421 (1) (a). He would issue a
warrant for attachment and sale of the property of the husband. The
form of issuing such a warrant is under Form 19 of the CrPC. The form
is issued upon Police Officer to attach moveable property and sale up to
the extent of the unpaid amount of maintenance.
12. If even after such warrant is issued for attachment and sale
and the property is attached and sold but yet the maintenance amount
remains unpaid, the Magistrate, under the latter part of Section 125(3)
would sentence the husband for such amount upto for one month.
13. It is further argued on behalf of the Petitioner that the issue
of that warrant would be as per Form 18 of the CrPC which is the
warrant for imprisonment for failure to pay maintenance U/s.125 of the
CrPC which is different from the form for NBW issued by the learned
Magistrate.
14. It may be stated that the proof of sufficient means of the
husband to maintain the wife would have already been seen in the
order of maintenance. The inability to pay maintenance to her would
also have been seen. The order would have been duly made for
payment of maintenance to the wife and / or child for the specific
amount. The first recital is in that behalf. The failure of the husband
would seen upon non payment as also non execution of warrant of
attachment and sale. The Magistrate would be entitled to pass an order
adjudging the husband to undergo imprisonment in the jail for the
period allowed U/s.125 (3) which is up to one month.
15. A reading of Section 125(3) shows that after execution of the
warrant for levying an amount of maintenance due as levying a fine is
executed the Magistrate may sentence the husband.
16. It is contended on behalf of the husband that the Magistrate
has yet not sentenced the husband. There is no order to undergo
imprisonment. Consequently, Form 18 which requires to show the
order directing imprisonment cannot be made applicable before Form
19 which requires attachment and sale of his moveable property.
17. In this case the learned Magistrate has issued NBW against
the husband. It is contended by counsel on behalf of the Petitioner
husband that the learned Magistrate has not followed procedure under
CrPC which is required to be followed U/s. 28 (1) of the DV Act. It is
contended by the counsel on behalf of the husband that for application
under Section 12 in which relief U/s.20 is granted, Section 125 (3)
under Rule 6 of the DV Rules becomes applicable.
18. My attention has been drawn by counsel on behalf of the
Petitioner husband to the Judgment of the learned Single Judge of the
Kerela High Court in the case Shanavas, S/o. Abdulsalam Vs. Raseena,
D/o. Shihabudeen and Anr., Cri M C No.4843 of 2010. In that an
interim protection order passed U/s.23(1) of the DV Act was breached.
The Court held that the penalty for the breach is provided only in
Section 31 of the DV Act and the Court held that NBW cannot be issued
for the breach of a protection order and arrest cannot be directed by
issuing NBW before the Magistrate takes cognizance of the offence
U/s.31(1) of the CrPC. That was also the case of failure to pay
maintenance. It was held that the Magistrate could not issue NBW as
was done in that case.
19. Hence it is contended that at present the simplicitor issue of
order of NBW is not in accordance with the complete procedure laid
down under the DV Act r/w. 125 (3) of the CrPC.
20. The Court appointed Ms. Flavia Agnes, to assist the Court as
amicus curiae. She has drawn my attention to Section 28 (2) of the DV
Act which runs thus:
Nothing in subsection (1) shall prevent the court from laying
down its own procedure for disposal of an application under
section 12 or under subsection (2) of section 23.
21. Thus the aforesaid argument becomes academic. The
provisions of the CrPC relating to maintenance as also the DV Act which
are beneficial legislations for protection of women such as the
Respondent wife in this case are required to be construed such as to
benefit those persons for whom they are enacted.
22. The Magistrate issuing NBW, therefore, seems to have
followed the Special Procedure for the arrest of the husband for non
payment of the maintenance ordered to be paid. Such procedure and
such procedural order is within the framework of Section 28(2) of the
DV Act and hence cannot be faulted as it is not seen to be illegal.
23. Hence the NBW is confirmed. The Writ Petition is dismissed.
The NBW shall be executed unless the husband pays off the entire
arrears now due and payable.
24. The Court is grateful to the learned amicus curiae for her
guidance.
25. Writ Petition is disposed off accordingly.
( ROSHAN DALVI, J.)
followed the Special Procedure for the arrest of the husband for non
payment of the maintenance ordered to be paid. Such procedure and
such procedural order is within the framework of Section 28(2) of the
DV Act and hence cannot be faulted as it is not seen to be illegal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.236 OF 2013
Sagar Sudhakar Shendge V/s. Mrs. Naina Sagar Shendge
CORAM : MRS. ROSHAN DALVI, J.
Date of Pronouncing the Order : 4 th April, 2013.
1. The Petitioner is the husband against whom maintenance
order has been passed U/s.20 of the Protection of Woman from
Domestic Violence Act (DV Act). The Petitioner has challenged the
order of maintenance in the Sessions Court in which the Petitioner has
not obtained any stay of the order ordering maintenance U/s.20 of the
DV Act. The husband breached the order of maintenance.
Consequently, wife applied for execution of the order of maintenance.
Hence the wife filed an application for issue of warrant for recovery of
the maintenance amount. Consequent, NBW has been issued. The
Petitioner has challenged the order of issuing NBW.
2. In his application the learned Judge observed that an appeal
was preferred, but no stay was granted and that the husband (petitioner
herein) was given ample opportunity to deposit interim maintenance
but he was only binding time. Hence learned Magistrate granted the
application of the wife and issued the NBW. He also directed that if the
Respondent paid off the arrears of maintenance which was Rs.56,000/
he will be released at the time of the execution of the NBW. The
amount of maintenance payable under the same order is now much
more.
3. Counsel on behalf of the Petitioner has contended that the
learned Magistrate has no powers to issue NBW under the DV Act.
4. The learned Special Public Prosecutor (Spl PP) has drawn my
attention to Rule 6 of the DV Rules which relates to applications U/s.12
of the DV Act.
Section 12 of the DV Act runs thus :
(1) An aggrieved person or a Protection Officer or any other
person on behalf of the aggrieved person may present an
application to the Magistrate seeking one or more reliefs under
this Act:
5. The wife in this case applied for reliefs under Sections 17 to
23 of the DV Act. The learned Magistrate granted order U/s.20. That is
an order of maintenance.
The relevant part of Rule 6 (5) runs thus :
6.Application to the Magistrate. –
(5) The applications under section 12 shall be dealt with and
the orders enforced in the same manner laid down under
section 125 of the Code of Criminal Procedure, 1973 (2 of
1974).
6. Consequently under Rule 6(5) the order passed U/s.20 upon
an application made U/s.12 would have to be enforced in the manner
laid down in the Section 125 of the CrPC.
7. Further the Magistrate would have to follow the procedure
U/s.28 (1) of the DV Act to which my attention has been drawn by the
learned Spl PP. Section 28(1) of the DV Act runs thus :
28. Procedure. –
(1) Save as otherwise provided in this Act, all proceedings
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jsn 3 Cr W P No. 236_2013
under Sections 12,18,19,20,21,22 & 23 and offences under
Section 31 shall be governed by the provisions of the Code of
Criminal Procedure, 1973.
8. The provisions in the CrPC lay down that the Section 125 is
to be r/w. along with Form 19 followed by Form 18.
The relevant part of Section 125 (3) runs thus :
125. Order for maintenance of wives, children and parents. –
(3) 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:
9. Under sub section 3 upon failure to pay maintenance and
committing breach of the order of maintenance the Magistrate will be
entitled to issue an warrant. The warrant would be for levying the
amount as a fine.
10. Counsel on behalf of the Petitioner drew my attention to
Section 421 of the CrPC which deals with the warrant for levying of
fine.
The relevant part of Section 421 runs thus:
421. Warrant for levy of fine. –
(1) When an offender has been sentenced to pay a fine, the
Court passing the sentence may take action for the recovery of
the fine in either or both of the following ways, that is to say, it
may
(a) issue a warrant for the levy of the amount by attachment
and sale of any moveable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising
him to realise the amount as arrears of land revenue from the
movable or immovable property, or both, of the defaulter.
11. It is argued on behalf of the Petitioner husband that in this
case the Magistrate would follow u/s.421 (1) (a). He would issue a
warrant for attachment and sale of the property of the husband. The
form of issuing such a warrant is under Form 19 of the CrPC. The form
is issued upon Police Officer to attach moveable property and sale up to
the extent of the unpaid amount of maintenance.
12. If even after such warrant is issued for attachment and sale
and the property is attached and sold but yet the maintenance amount
remains unpaid, the Magistrate, under the latter part of Section 125(3)
would sentence the husband for such amount upto for one month.
13. It is further argued on behalf of the Petitioner that the issue
of that warrant would be as per Form 18 of the CrPC which is the
warrant for imprisonment for failure to pay maintenance U/s.125 of the
CrPC which is different from the form for NBW issued by the learned
Magistrate.
14. It may be stated that the proof of sufficient means of the
husband to maintain the wife would have already been seen in the
order of maintenance. The inability to pay maintenance to her would
also have been seen. The order would have been duly made for
payment of maintenance to the wife and / or child for the specific
amount. The first recital is in that behalf. The failure of the husband
would seen upon non payment as also non execution of warrant of
attachment and sale. The Magistrate would be entitled to pass an order
adjudging the husband to undergo imprisonment in the jail for the
period allowed U/s.125 (3) which is up to one month.
15. A reading of Section 125(3) shows that after execution of the
warrant for levying an amount of maintenance due as levying a fine is
executed the Magistrate may sentence the husband.
16. It is contended on behalf of the husband that the Magistrate
has yet not sentenced the husband. There is no order to undergo
imprisonment. Consequently, Form 18 which requires to show the
order directing imprisonment cannot be made applicable before Form
19 which requires attachment and sale of his moveable property.
17. In this case the learned Magistrate has issued NBW against
the husband. It is contended by counsel on behalf of the Petitioner
husband that the learned Magistrate has not followed procedure under
CrPC which is required to be followed U/s. 28 (1) of the DV Act. It is
contended by the counsel on behalf of the husband that for application
under Section 12 in which relief U/s.20 is granted, Section 125 (3)
under Rule 6 of the DV Rules becomes applicable.
18. My attention has been drawn by counsel on behalf of the
Petitioner husband to the Judgment of the learned Single Judge of the
Kerela High Court in the case Shanavas, S/o. Abdulsalam Vs. Raseena,
D/o. Shihabudeen and Anr., Cri M C No.4843 of 2010. In that an
interim protection order passed U/s.23(1) of the DV Act was breached.
The Court held that the penalty for the breach is provided only in
Section 31 of the DV Act and the Court held that NBW cannot be issued
for the breach of a protection order and arrest cannot be directed by
issuing NBW before the Magistrate takes cognizance of the offence
U/s.31(1) of the CrPC. That was also the case of failure to pay
maintenance. It was held that the Magistrate could not issue NBW as
was done in that case.
19. Hence it is contended that at present the simplicitor issue of
order of NBW is not in accordance with the complete procedure laid
down under the DV Act r/w. 125 (3) of the CrPC.
20. The Court appointed Ms. Flavia Agnes, to assist the Court as
amicus curiae. She has drawn my attention to Section 28 (2) of the DV
Act which runs thus:
Nothing in subsection (1) shall prevent the court from laying
down its own procedure for disposal of an application under
section 12 or under subsection (2) of section 23.
21. Thus the aforesaid argument becomes academic. The
provisions of the CrPC relating to maintenance as also the DV Act which
are beneficial legislations for protection of women such as the
Respondent wife in this case are required to be construed such as to
benefit those persons for whom they are enacted.
22. The Magistrate issuing NBW, therefore, seems to have
followed the Special Procedure for the arrest of the husband for non
payment of the maintenance ordered to be paid. Such procedure and
such procedural order is within the framework of Section 28(2) of the
DV Act and hence cannot be faulted as it is not seen to be illegal.
23. Hence the NBW is confirmed. The Writ Petition is dismissed.
The NBW shall be executed unless the husband pays off the entire
arrears now due and payable.
24. The Court is grateful to the learned amicus curiae for her
guidance.
25. Writ Petition is disposed off accordingly.
( ROSHAN DALVI, J.)
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