Mumbai: A court cannot issue non-bailable warrants (NBWs) against defaulters without first adopting other remedies available under law to recover arrears, the Bombay High Court has held while quashing a warrant issued against a man for failing to pay interim maintenance to his estranged wife.
The Nagpur bench of the high court was hearing a petition filed by Sachin Bodhale challenging an April 2 order by a magistrate court issuing non-bailable warrant against him after he failed to pay the maintenance amount to his wife.
Sachin`s wife had lodged a complaint against him under the Protection of Women from Domestic Violence (DV) Act. The magistrate had passed an interim order granting monetary relief.
Sachin`s lawyer Sudhir Moharir argued that the magistrate while issuing the non bailable warrant was of the view 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.
Justice M L Tahaliyani was of the view that the there is provision under the Criminal Procedure Code (CrPC) which states how the amount of maintenance is to be recovered.
"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," Justice Tahaliyani said.
The court observed that in case the amount was not recovered, then the court could have imposed a sentence on the defaulter as per provision laid down in the CrPC.
"The stage of issuing a non-bailable warrant comes only after sentencing and not before that," Justice Tahaliyani said while setting aside the magistrate`s order.