A court should first adopt other remedies available under the law to recover arrears instead of directly issuing a non-bailable warrant (NBW) against the defaulter, observed the Bombay high court (HC), while quashing a warrant issued against a man for failing to pay interim maintenance to his estranged wife.
Justice ML Tahilyani of the Nagpur bench of HC was hearing a petition filed by one Sachin Bodhale against the NBW issued by a magistrate court on April 2 as he failed to pay the maintenance amount to his wife.
Bodhale's wife had filed a complaint against him under the Protection of Women from Domestic Violence (DV) Act. The magistrate had passed an interim order granting monetary relief.
Bodhale's lawyer Sudhir Moharir said that while issuing the NBW, the magistrate opined that under section 28 (2) of the DV Act the court had the power to adopt any procedure to ensure recovery of the maintenance amount.
Disagreeing with the magistrate's view, justice Tahilyani said that the Criminal Procedure Code (CrPC) lays down a provision which states how the amount of maintenance is to be recovered.
Justice Tahilyani observed: "The magistrate, in my opinion, could not have issued non-bailable warrant directly. Under section 421 of CrPC, the magistrate was under obligation to first issue a warrant for levy of the amount by attachment and sale of any movable property. If the amount was recovered by adopting this procedure, then the question of putting the defaulter in prison does not arise."