The Kerala High Court recently addressed the legality of issuing non-bailable warrants (NBWs) for non-payment of maintenance under Section 125(3) of the Criminal Procedure Code (CrPC). Amicus Curiae Advocate Parvathi Menon A argued that no provision allows an NBW to enforce maintenance orders under Section 125(3).
Key Observations by the Court
Section 125 of the CrPC mandates that magistrates can enforce maintenance orders through distress warrants. If a person fails to comply, the magistrate can order imprisonment for up to one month or until payment is made. The Amicus submitted that the distress warrant is the primary method for recovery, while NBWs can only be issued if the distress warrant fails to recover the dues.
Justice Kauser Edappagath noted that issuing NBWs directly, without first issuing a distress warrant, is currently a common practice in Kerala courts. However, this practice may conflict with legal provisions.
Case Details
The case involved a mother and daughter seeking enforcement of an NBW issued against a father/husband for failing to pay maintenance. The husband challenged the warrant, arguing it was issued without following the proper procedure of issuing a distress warrant first.
The High Court raised key questions:
Do magistrates issue NBWs under Section 125(3) without first issuing distress warrants?
Can NBWs be issued before imposing imprisonment?
Do NBWs enforce imprisonment for non-payment of maintenance?
Can defaulters sentenced to imprisonment be treated as escaped convicts under Section 73 of the CrPC?
Arguments and Legal Precedents
The Amicus referred to rulings by the Orissa High Court, which clarified that distress warrants should be issued first. However, in exceptional cases, the defaulter has no property or admits inability to pay. The magistrate may proceed with imprisonment directly.
She highlighted the decision in Rajendra Kumar Pradhan v. Pramila Pradhan (1993), which allowed NBWs if distress warrants failed to recover dues. Additionally, in Naresh Chandra Panda v. Minarini Panda (2017), simultaneous issuance of distress and NBWs was upheld, provided the NBW execution was conditional on the failure of the distress warrant.
The Amicus emphasized that procedural delays undermine Section 125’s purpose of preventing destitution. She suggested reforms to ensure timely recovery and effective enforcement of maintenance orders.
Court Remarks and Next Steps
The High Court noted that the current system must change to ensure maintenance recipients receive their dues promptly. It impleaded the State Government to develop an effective enforcement system and scheduled the case for further hearing in two weeks.
