Final Order 4

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF V. K. BANSAL,
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI.
Crl. Revision No.199/2023
CNR No.DLNE01-003529-2023
In the matter of:
Yasar Khan
S/o Sh. Saghir Khan
R/o B-1/10-A, Service Line,
Yamuna Vihar, Delhi-110053. .........Revisionist
Versus
1.Nida Parveen
D/o Sh. Mohd. Ali
R/o House no.C-56,
Street no.7, North Ghonda,
Delhi-110053.
2.State (GNCT of Delhi). …........Respondents
Date of registration of revision: 23.11.2023
Date when revision was received by this Court: 23.11.2023
Date of conclusion of arguments: 01.12.2023
Date of pronouncement of order: 02.12.2023
ORDER
1. The present revision petition has been preferred
challenging the order dated 16.11.2023, whereby the learned MM
has issued warrants of arrest against the revisionist herein.
2. The brief facts giving rise to the present revision are that
Nida Parveen filed an application under Section 23 of the
provisions of Protection of Women from Domestic Violence Act
(in short ‘the Act’). The application under Section 23 of the Act
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was disposed of vide order dated 23.03.2021, whereby Yasar
Khan (hereinafter referred to as the respondent/revisionist) was
directed to pay Rs.15,000/ per month to his daughter Mahira as
interim maintenance from the date and month of filing of the
petition and that will continue till she attains the age of majority.
It was directed that the payment shall be made by the 10th of
every month and the arrears be cleared within six months. The
respondent/revisionist did not clear the arrears. Therefore,
execution was filed and it was during execution proceedings that
nonbailable warrants were issued for securing the presence of
the revisionist herein. Aggrieved by this order, the present
revision is preferred.
3. Notice of the revision was sent to the respondent, who put
up appearance and also filed reply to the same. Trial Court record
was also requisitioned.
4. I have heard learned counsel for the revisionist, learned
counsel for the respondent and perused the record.
5. Learned counsel for the revisionist submitted that the
respondent filed execution petition for an amount of
Rs.5,10,000/-. Revisionist/JD had already paid Rs.30,000/-
through demand draft on 03.03.2022. Thereafter, on 31.08.2022
revisionist/JD paid Rs.50,000/-. On 15.09.2022, he paid
Rs.15,000/-. On 01.06.2023, he paid Rs.25,000/- to the
respondent/DH. On 18.10.2023, he had paid Rs.34,000/-. On
01.11.2023, he paid Rs.30,000/- and in total he had paid
Rs.1,84,000/- to the respondent/DH.
6. Learned counsel submitted that on 16.11.2023, revisionist
moved an application for exemption on medical ground
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supported by medical prescription dated 15.11.2023 of Jag
Pravesh Chand Hospital, Shastri Park, Delhi and requested the
court to adjourn the matter for making payment of arrears of
maintenance, but the Trial Court dismissed the application and
issued warrants of arrest. Learned counsel submitted that order of
issuing warrant of arrest is illegal, unjustified and bad in law as
application for exemption from personal appearance was moved
apprising the Trial Court that revisionist is suffering from serious
medical condition supported by medical prescription of the
hospital.
7. Learned counsel submitted that even otherwise as per
section 20 (d) of the Act read with Rule 6 (5) of Rules of 2006,
application under section 12 of the D. A. Act shall be dealt with
and order have to be enforced in the manner laid down under
section 125 CrPC. Further, Section 125 (3) CrPC provides that if
any person so ordered fails without sufficient cause to comply
with the order, 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.
8. Learned counsel submitted that in the present case, this
procedure has not been followed. No effort whatsoever has been
made to issue warrant of attachment of the property. The Trial
Court should not have issued warrant of arrest without
exhausting other coercive measures of issuing warrant of
attachment as mentioned in Section 421 CrPC of movable or
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immovable property of the JD i.e revisionist herein. The property
of revisionist should have been attached before issuing warrant of
arrest. The learned Trial Court has no jurisdiction to straightway
issue warrant of arrest in the event of non-payment of amount
due without following procedure laid down under section 421
CrPC.
9. Learned counsel submitted that even recovery of fine
levied is governed by Section 421 CrPC. After issuance of
warrant of arrest, if the same remains unexecuted then process
under Section 82–83 CrPC can be issued, which may result into
another prosecution under section 174A IPC. Learned counsel
submitted that under the circumstances order passed by the Trial
Court is illegal, not sustainable under law and liable to be set-
aside.
10. Learned counsel in support of his arguments has relied
upon judgment cited as Sachin Suresh Bodhale v. Sushma
Sachin Bodhale, 2014 (4) Mah. LJ (Cri) 290 decided by
Honorable Mr. Justice M. L. Tahaliyani, Nagpur Bench of High
Court Judicature of Bombay, dated 06.05.2014, wherein it is held
that Court cannot issue NBW without following the procedure
under Section 421 CrPC and the procedure as laid down in sub
section 3 of Section 125 CrPC. The Hon’ble High Court of
Bombay also held as follows:
“8. Thus there is absolutely clear provision under the Code of
Criminal Procedure, which lays down as to how the amount of
maintenance, final or interim, is to be recovered. The Magistrate, in
my opinion, could not have issued non bailable warrant directly. He
should have followed the procedure laid down in Sub-section (3) of
Section 125 and section 421 of the Code of Criminal Procedure. In
the scheme of Code of Criminal Procedure, in the first place, the
Magistrate was under obligation to issue a warrant for levy of the
amount by attachment and sale of any movable property. The other
remedy available was to issue a warrant to the Collector of the
district, authorising him to realise the amount as arrears of land
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revenue from the movable or immovable property, or both of the
defaulter. The Magistrate could have sentenced the petitioner 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 might extend to one month or until
payment if sooner made.
9. As such the first option available to the Magistrate was to issue a
warrant for levying fine. If whole of the amount was recovered by
adopting the procedure under section 421 of the Code of Criminal
Procedure, the question of putting the defaulter in prison did not
arise. In case amount was not recovered or part of it was recovered
and part of it was not recovered, then the question would have
arisen as to how much sentence should be imposed on the defaulter
as per the provision laid down in the Code of Criminal Procedure.
The stage of issuing warrant comes only after sentencing and not
before that.”
11. Learned counsel for the respondent submitted that in this
case maintenance for the minor child has been allowed and that
has attained finality as is evident from the order passed by the
learned Principle District & Session Judge, dated 11.10.2021. It
was also directed in that order that revisionist herein shall clear
the arrears within six months, which he has not been cleared.
Learned counsel submitted that as on date total arrears are to the
tune of Rs.9,30,000/-.
12. Notice of the execution petition was sent to the revisionist
herein, who has not filed any reply. He put up appearance and
paid some amount. He himself gave an undertaking on
18.10.2023 that he will make payment of Rs.66,000/- on the next
date and the next date was 01.11.2023. On that date, he has not
complied with his own undertaking and paid only Rs.30,000/-
and sought time for making further payment, which was granted.
Learned counsel submitted that the next date was given as
16.11.2023, but he did not appear on that date and has not made
any payment.
13. Learned counsel submitted that ground for his exemption
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was that he was ill. The copy of the medical prescription issued
by the JPC Hospital clearly shows that there was no serious
illness. The prescription is dated 15.11.2023 at 6:37 pm and the
prescription slip shows that there is complaint of loose motion,
vomiting, abdominal pain and weakness, but the doctor has not
advised any bed rest. Despite that he did not appear on
16.11.2023 and had also not made any provision for payment of
maintenance, which was due regarding which he had given an
undertaking. Learned counsel submitted that the execution has to
be disposed of expeditiously.
14. Learned counsel relied upon the judgment cited as Bhoj
Raj Garg vs. Goyal Education and Welfare Society & Ors.
Special Leave to Appeal (C) No(s). 19654/2022, dated
18.11.2022 as under:
“2. The Executing Court must dispose of the Execution
Proceedings within six months from the date of filing, which
may be extended only by recording reasons in writing for such
delay.
This means that it becomes the duty of the Execution Court to
dispose of the execution proceedings at the earliest and since
this Court has directed that the Execution Court must dispose
of the execution proceedings within six months from the date of
filing, which can be extended only by recording reasons in
writing for such delay, this direction is meant to be observed.
This would mean that every effort should be made to dispose of
the execution petition within the said time limit and the
Execution Court should have reasons for not being able to
dispose of the execution petition. The Execution Court is duty
bound to record reasons in writing when it is unable to dispose
of the matter.”
15. Learned counsel has also placed reliance on judgment cited
as Pradeep Kumar vs. Smt. Bhawana and Anr., Crl. M.C.
1692/2022, Crl M.A. 7236/2022, wherein the Honorable High
Court of Delhi has held as under in under:
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“13.The statement recorded on oath by the learned Family
Court on 9th February, 2021 (Annexure P5) also records that
the petitioner owns a Hyundai EON car and a smartphone of
Samsung. Yet, he wishes to peg the maintenance of the respon
dent to Rs.4,000/ (before this Court Rs.5,000/) i.e., less than
half of the sum he allegedly spends on his old parents. A grow
ing child and a mother who is taking care of all the needs of
such a growing child is to somehow manage with Rs.4,000/,
whereas, the petitioner and his parents can have a greatly en
hanced level of comfort by spending Rs.25,000/ to Rs.28,000/
on themselves.
14. This attitude is shameful to say the least. It behoves no hus-
band or a father to deny a fair standard of living for a wife who
is a homemaker and their child of tender age. It is alleged in
the petition that the respondent No.1 is earning Rs.30,000/- by
way of tuitions. It is no doubt a wild allegation, but it is curi-
ous, as to why the petitioner, is unwilling to make such addi-
tional efforts himself, to earn some more income, to meet the fi-
nancial obligations of a husband and a father.
15. The malafide intentions of an estranged husband is to de-
press his income as much as possible, for sadistic pleasure, of
seeing the agony of someone, who has no choice, but to be de-
pendent on him, may be dictated by egoistic propensity to also
possibly teach his wife a lesson for not falling in line with what-
ever be his dictates. Matrimonial relationships can come to an
end for a variety of reasons including ego clashes. It is time
that there is a change in the attitude when litigation is filed by
one spouse against the other. To introduce bitterness in the liti-
gation serves nobody's purpose. The creation of Family Courts,
the entire set up of Counseling Centers, and the availability of
mediation whether before litigation or during litigation, are all
intended for a more amiable and less torturous resolution of
matrimonial and family problems. The legal fraternity must Sig-
nature Not Verified Digitally Signed By:MANJEET KAUR Sign-
ing Date:18.07.2022 17:28:55 encourage quick resolution by
these methods. Their role would be of immeasurable value in
rescuing lives from the brink of ruination and annihilation.”
16. Learned counsel has also relied upon judgment passed by
the Honorable Supreme Court in case titled as Rajnesh vs. Neha
and Anr. Criminal Appeal No.730 of 2020, dated 04.11.2020
whereby the learned counsel submitted that in that case the
Honorable Supreme Court has issued following direction:
“The order or decree of maintenance may be enforced like a
decree of a civil court, through the provisions which are
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available for enforcing a money decree, including civil
detention, attachment of property, etc. as provided by various
provisions of the CPC, more particularly Sections
51, 55, 58, 60 read with Order XXI.”
17. Learned counsel submitted that in the present case, the
Trial Court after considering all the facts issued arrest warrant
and specifically mentioned that warrants are only issued for the
purpose of securing presence of the revisionist herein. Learned
counsel submitted that there is no infirmity in the order. The
learned Trial Court has rightly exercised its jurisdiction and
prayed that the revision be dismissed
18. After hearing the arguments and going through the record,
I found that the execution petition was filed on 28.06.2021 with
respect to interim order passed on 23.03.2021. Notice was sent to
the JD and he sought time to pay the maintenance and it was only
on 03.03.2022 for the first time that he paid Rs.30,000/-. Keeping
in view the payment due, the Court directed him to make further
payment on the next date i.e 25.03.2022 and demand draft of
Rs.30,000/- was handed over to the DH by the revisionist.
19. Learned counsel for the JD informed the Court on
25.03.2022 that JD will deposit Rs.20,000/- on the next date of
hearing i.e 13.05.2022. On 13.05.2022, no payment was made
and the next date was given as 11.07.2022. On 13.05.2022, JD
was directed to pay atleast Rs.50,000/- to the DH. On 11.07.2022
learned counsel for the JD appeared and stated that he has
brought only Rs.10,000/- and the court observed that JD is
deliberately avoiding payment of money. It is also important to
note here that on that date, JD was not present. The next date was
given as 31.08.2022. He was produced before the court in
pursuance to NBW issued against him and it was only then that
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Rs.50,000/- were transferred in the bank account of DH.
20. On the next date i.e. 31.08.2022, DH admitted that she has
received an amount of Rs.50,000/- in her bank account and JD
sought more time to make payment and at that time it was
observed that more than Rs.6,00,000/- were due. The next date
was given as 15.09.2022 and he was directed to pay at least
Rs.30,000/- on that date. On the next date i.e. 15.09.2022, JD
paid Rs.15,000/- only and submitted that he will deposit the same
in the bank account of DH and the next date was given as
14.10.2022. But on that date nothing happened as file was in the
Sessions Court. On 11.11.2022, contempt application was also
moved by the DH. On the next date, none appeared and the next
date was given as 25.04.2023. On 25.04.2023, learned counsel
for the DH appeared, but JD was not present and no payment was
made. It was on 01.06.2023 that Rs.25,000/- were paid in cash
by JD i.e. revisionist herein to the DH. On that date, it was
pointed out that more than Rs.7,00,000/- is outstanding and the
court directed him to pay Rs.1,00,000/- out of arrears on the next
date of hearing apart from the monthly maintenance amount and
the next date was given as 26.07.2023.
23. On 26.07.2023, neither the DH nor JD appeared and the
next date was given as 08.09.2023. On 08.09.2023, JD was not
present and court ordered issuance of warrant of arrest against
him and the next date was given as 01.11.2023. On 01.11.2023,
JD appeared and an amount of Rs.30,000/- was paid to the DH
and JD also gave an undertaking to make payment of Rs.66,000/-
on the next date. In between file was taken up on 18.10.2023, on
an application of JD and he paid Rs.34,000/- and gave an
undertaking that he will make payment of Rs.66,000/- on the
next date, which was given as 01.11.2023 i.e. the date already
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fixed. On 01.11.2023, he paid Rs.30,000/- to the DH. It was
pointed out that JD is not making regular payment and there is
outstanding amount of Rs.9,30,000/-. Therefore Court directed
JD to clear arrears and pay at least Rs.1,00,000/- on the next date
i.e. 16.11.2023. But on 16.11.2023, JD did not appear, however,
counsel for the JD was present and moved an application for his
exemption. The Court dismissed the application and issued NBW
to secure his presence.
24. The OPD slip which has been placed on record by the
revisionist herein shows that he was having complaint of loose
motion, vomiting, abdominal pain and weakness. This OPD slip
of JPC Hospital is dated 15.11.2023 at 6:37 p.m. But the doctor
has not advised any bed rest. In any case, payment of
maintenance was to be made every month. The order sheets
which have been mentioned above clearly show that he is not
regular in making payment of maintenance though it was ordered
that he shall pay maintenance of Rs.15,000/- and arrears be
cleared within 6 month, but the record speaks for itself that he is
neither clearing the arrears nor regularly paying the monthly
maintenance.
25. The Honorable Supreme Court in case titled as Rajnesh
Vs. Neha and Anr., 2021 (2) SCC 324 issued directions with the
respect to enforcement/execution of order of maintenance,
wherein it is provided that order of maintenance may be enforced
under section 28A of the Hindu Marriage Act, 1956, Section 20
(6) of the D.V Act, Section 128 of CrPC as may be applicable as
money decree of civil court as per provisions of CPC more
particularly section 51, 55 58 60 read with order XXI.
26. Keeping in view these directions issued by the Honorable
Apex Court, in my opinion, under the provision of Domestic
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Violence Act, the court can follow its own procedure for the
enforcement of maintenance order. It is also important to note
here that the Trial Court has not passed order for taking him into
custody to undergo imprisonment. The order itself speaks that it
is passed only to secure presence of the revisionist herein so that
the order of maintenance can be complied with.
27. Under the circumstances, this argument of learned counsel
that before issuing the non-bailable warrants against the
revisionist herein, the Trial Court should have followed the entire
process of attachment of his movable or immovable property has
no force. The Trial Court has rightly issued the NBW as the
revisionist herein was not making payment of the maintenance as
required under law. In having this, opinion I am fortified by the
judgment cited as Chintan Ashok Busa v. Mansi Chintan Busa,
2019 (3) HLR 575, wherein it is held as under:
“19. The learned counsel for the applicant vehemently submits
that in fact there is non-compliance of Section 421 of the Crimi-
nal Procedure Code and that the Metropolitan Magistrate has
committed grave error in issuing non-bailable warrant and has
contended that the Metropolitan Magistrate could not have is-
sued non-bailable warrant.
20. In fact section 28(2) of the Protection of Women From Do-
mestic Violence Act reads as follows '(2) Nothing in sub-section
(1) shall prevent the court from laying down its own procedure
for disposal of an application under section 12 or under sub-
section (2) of section 23'. and therefore, this Court is of the
opinion that the issuance of non-bailable warrant is a proce-
dural order within the frame work of section (2) of the Protec-
tion of Women from Domestic Violence Act and hence cannot be
faulted. The Court cannot be oblivious of the fact that in fact
distress warrants were issued on more than two occasions. Non-
bailable warrant was issued on 5th April 2018 which was stayed
by the High Court after directing the applicant to deposit the
amount and this is the second non-bailable warrant issued by
the Court.”
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28. Sagar Sudhakar Shendge v. Mrs. Naina Sagar Shendge,
2013 (2) Crimes 218, wherein it is held as under:
“17. In this case the learned Magistrate has issued NBW against the
husband. It is contended by counsel on behalf of the Petitioner hus-
band that the learned Magistrate has not followed procedure under
Cr.P.C. which is required to be followed under section 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 under section 20 is
granted, Section 125 (3) under Rule 6 of the DV Rules becomes ap-
plicable.
18. My attention has been drawn by counsel on behalf of the Peti-
tioner husband to the Judgment of the learned Single Judge of the
Kerela High Court in the case Shanavas, S/o. Abdulsalam v.
Raseena, D/o. Shihabudeen and Anr., Cri M.C. No. 4843 of 2010. In
that an interim protection order passed under section 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 ar-
rest cannot be directed by issuing NBW before the Magistrate takes
cognizance of the offence under Section 31(1) of the Cr.P.C. 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 or-
der 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 Subsec
tion (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.”
29. Keeping in view the law laid down by the Honorable Apex
Court and the judgment passed by the Honorable High Court of
Mumbai, I am of the opinion that the Trial Court has rightly
exercised its jurisdiction and issued warrant of arrest against the
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revisionist herein to secure his presence, which cannot be found
faulted with. There is no merit in the revision. Same is dismissed.
30. Copy of the order along with Trial Court record be sent
back.
31. Revision file be consigned to the Record Room.
Announced in the open (V. K. BANSAL)
court today i.e on Principal District & Sessions Judge,
2nd December, 2023 North East, Karkardooma Courts, Delhi.
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