Justice L Victoria Gowri <\/strong>said that trial courts must strictly follow the correct legal sequence before issuing such harsh coercive steps<\/strong>, especially in maintenance matters where personal liberty is involved. The Court observed that the aim of Section 125 CrPC is social justice<\/strong>, but fairness and due procedure must always be followed.<\/p>\n\n\n\n The case began when the wife and daughter filed an execution petition claiming arrears of \u20b95,14,000 after the husband failed to pay the maintenance originally fixed at \u20b96,000 per month to the wife and \u20b94,000 per month to the daughter. The Magistrate found the husband had wilfully defaulted for more than a year and directly issued a Non-Bailable Warrant to secure his presence. The husband challenged only this NBW, not the maintenance order itself.<\/p>\n\n\n\n Before the High Court, the husband argued that under Section 87 CrPC, the proper order is first summons, then bailable warrant, and only then a non-bailable warrant if the earlier steps fail. He said a straight NBW violated natural justice<\/strong>. He also argued that proceedings under Sections 125 and 128 CrPC are quasi-civil, meant for recovery\u2014not punishment\u2014so issuing an NBW without exhausting milder measures amounts to misuse of criminal powers.<\/p>\n\n\n\n He claimed that since arrears were for 71 months, only a distraint warrant under Section 128 CrPC was legally correct, not a distress warrant under Section 125(3), because imprisonment is allowed only for arrears up to one year<\/strong>.<\/p>\n\n\n\n The wife opposed his plea, stating that summons had already been served, the husband had appeared and filed a counter, and then absented himself. She argued the NBW was issued only after notice and hearing, not at the first instance. According to her, the husband had sufficient financial means but still chose not to pay any amount, and securing his presence through NBW was justified.<\/p>\n\n\n\n After examining the records, the High Court found that the Magistrate\u2019s order did not clearly mention whether the warrant was issued under Section 125(3) or Section 128 CrPC. The Court explained the important difference between a distress warrant under Section 125(3), which is punitive and may lead to imprisonment, and a distraint warrant under Section 128, which is meant to attach property to recover money.<\/strong> The confusion in the order made it procedurally defective.<\/p>\n\n\n\n Referring to earlier decisions, the Court reproduced the following passage from S.T. Prabhakar v. Secretary to Government<\/em><\/strong>, highlighting the legal distinction and the consequences of issuing incorrect forms of warrants:<\/p>\n\n\n\n \u201c8. At the outset, I have to state that it is distressing to note that more than one illegality has been committed by the learned Judicial Magistrate. Indisputably, the petition for execution was filed only under Section 128 of the Code by the wife of the petitioner and not under Section 125(3) of the Code. It is needless to point out that there is much difference between the power of the Judicial Magistrate under Section 125(3) and 128 of the Code. At this juncture, it is worthwhile to extract Sections 125(3) and 128 of the Code.\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n The judgment also included the quoted statutory text:<\/p>\n\n\n\n “125(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 one month or until payment if sooner made;\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n \u201c128; Enforcement of order of maintenance.- A copy of the order of [maintenance or interim maintenance and expenses of proceeding, as the case may be], shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to [whom the allowance for maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be], is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the [allowance, or as the case may be, expenses, due].\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n \u201c9. A glance through the above provisions would show that under Section 125(3) of the Code, there is a limitation to entertain the petition and under Section 128 of the Code, there is no such limitation provided for enforcing the order\u2026 Therefore, it is crystal clear that the wife of the petitioner had consciously filed the petition under Section 128\u2026.\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n The Court also extracted further quoted findings exposing how issuing the wrong form of warrant becomes illegal:<\/p>\n\n\n\n \u201c11. Unfortunately, from the records, it could also be seen that on the very same day, instead of issuing a warrant for recovery of fine, [Form No.44], the learned Judicial Magistrate issued a distress warrant as per Form No.18\u2026 Therefore, it is crystal clear that the issuance of \u2018Distress Warrant\u2019 for the arrest of the petitioner by the learned Judicial Magistrate is illegal.\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n The High Court also referred to another quote from Priyanga v. State<\/em>, where misuse of NBW was criticised:<\/p>\n\n\n\n \u201c4. …In M\/s.Jeevan Emu Care Indian (P) Ltd.\u2026 the Court said: The Madras High Court held that although the husband had defaulted, the records did not show that a bailable warrant was issued before issuing an NBW. There was also no reasoning explaining why the husband\u2019s presence could not be secured through milder measures. The Court emphasised Section 87 CrPC, which requires summons first, then bailable warrant, and only then an NBW as a last resort.<\/p>\n\n\n\n The Court acknowledged that the husband cannot escape responsibility entirely, as he had not complied with the maintenance order and had not produced any stay order from the Sessions Court<\/strong>. But since the Magistrate skipped mandatory procedure, the NBW could not be sustained.<\/p>\n\n\n\n Towards the end of the judgment, the High Court reiterated the foundational principle through another important quote:<\/p>\n\n\n\n \u201cThe object of Section 125 Cr.P.C., 1973, is social justice to prevent destitution of neglected wives and children. Courts must ensure that maintenance orders are effectively implemented, while at the same time safeguarding the liberty of individuals from arbitrary arrest. The delicate balance between enforcement and fairness is the hallmark of criminal jurisprudence.\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n Finally, the Court delivered the concluding quoted observation stressing the procedural discipline needed:<\/p>\n\n\n\n \u201cThis case underscores the need for the learned Trial Courts to distinctly record under which provision warrants are issued, whether punitive under Section 125(3) or coercive under Section 128, and to follow the statutory sequence under Section 87 Cr.P.C., 1973, before resorting to non-bailable warrants.\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n The High Court therefore set aside the NBW and directed the Magistrate to issue a bailable warrant instead and continue the execution proceedings as per law. The husband was also directed to deposit 50% of the admitted arrears within four weeks.<\/p>\n\n\n\n Explanatory Table Of All Laws & Sections In This Case<\/strong><\/p>\n\n\n\n\n
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\u201810. \u2026issuance of non bailable warrant involves interference into the personal liberty, which is the most precious right of an individual\u2026 the Courts have to be extremely cautious\u2026
11. \u2026the learned Judge, without adhering to the above guidelines\u2026 has issued the non bailable warrant\u2026 This practice deserves to be deprecated.\u2019
\u20189. In the opinion of this Court, in a case of this nature, the Magistrate ought not to have issued a Non-Bailable Warrant at the first instance\u2026\u2019\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n\n
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Section \/ Law<\/strong><\/td> What It Is<\/strong><\/td> How It Applies in This Case<\/strong><\/td><\/tr><\/thead> Section 125 CrPC<\/strong><\/td> Social justice provision for maintenance of wife, children & parents<\/td> Maintenance order was passed under this section directing monthly payment. Court reminded that its object is \u201csocial justice\u201d<\/strong> and implementation must be fair.<\/td><\/tr> Section 125(3) CrPC<\/strong><\/td> Allows imprisonment for default up to one month per month\u2019s arrears<\/strong>, but only for arrears up to 1 year<\/strong><\/td> Magistrate mixed this up with Section 128; High Court said distress warrant under 125(3) is punitive<\/strong>, not correct for arrears beyond 12 months.<\/td><\/tr> Section 128 CrPC<\/strong><\/td> Civil-style execution by distraint warrant<\/strong> (attachment of property) with no limitation period<\/strong><\/td> Since arrears were for 71 months, the High Court held Section 128 should have been used, not 125(3).<\/td><\/tr> Section 87 CrPC<\/strong><\/td> Provides sequence: Summons \u2192 Bailable Warrant \u2192 NBW<\/strong><\/td> Magistrate skipped this mandatory sequence and directly issued NBW; High Court found this improper.<\/td><\/tr> Section 397 CrPC<\/strong><\/td> Revisional jurisdiction to correct illegality or procedural errors<\/td> Husband challenged only the NBW\u2014not maintenance\u2014under this section.<\/td><\/tr> Section 401 CrPC<\/strong><\/td> Powers of Revisional Court<\/td> High Court used this to set aside the NBW and issue corrective directions.<\/td><\/tr> Section 70(2) CrPC<\/strong><\/td> Power to recall warrant<\/td> Husband argued Magistrate should have recalled NBW when circumstances justified.<\/td><\/tr> Article 21, Constitution of India<\/a><\/strong><\/td> Right to personal liberty<\/td> Court held straight NBW without following safeguards may violate liberty.<\/td><\/tr> Domestic Violence Act, 2005<\/a> (referred)<\/strong><\/td> Provides relief including monetary orders<\/td> Cited to show such proceedings are quasi-civil\/quasi-criminal<\/strong>, hence NBW must be cautiously used.<\/td><\/tr> Case Law: Shantha v. B.G. Shivananjappa<\/strong><\/td> Supreme Court on maintenance enforcement<\/td> Cited by wife to argue arrears beyond 1 year can still be enforced.<\/td><\/tr> Case Law: Poongodi v. Thangavel<\/strong><\/td> SC judgment holding recovery can go beyond one-year limit<\/td> Used by respondents to justify execution.<\/td><\/tr> Case Law: S.T. Prabhakar v. Secretary to Government<\/strong><\/td> Madras HC explaining difference between distress & distraint warrants<\/td> Quoted heavily by High Court; forms the backbone of reasoning.<\/td><\/tr> Case Law: Priyanga v. State<\/strong><\/td> Madras HC saying NBW cannot be issued at first instance<\/td> Reinforced need for summons \u2192 bailable warrant \u2192 NBW.<\/td><\/tr> Case Law: Inder Mohan Goswami v. State of Uttaranchal<\/strong><\/td> SC warning against casual NBW issuance<\/td> High Court relied on this principle; NBW must be \u201ca last resort.\u201d<\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n