Enforcement of Maintenance Orders under Section 125(3) CrPC / 144 BNSS

When a person fails to comply with a maintenance decree, Section 125(3) of the Code of Criminal Procedure (CrPC) provides the Magistrate with specific powers to enforce the payment. These powers include the attachment of property and, as a last resort, the imprisonment of the defaulter.

Enforcement of Magistrate’s Order

Under Section 125(3), the Magistrate may issue a warrant to levy the amount due in the same manner as a fine (as per Section 421 CrPC). This is commonly known as a Distress Warrant. The amount can be recovered by:

• Attachment and sale of any movable property belonging to the defaulter.
• Issuance of a warrant to the District Collector to realize the amount as arrears of land revenue.

If the amount remains unpaid after the execution of the distress warrant, the Magistrate has the power to sentence the defaulter to imprisonment for a term of up to one month (or until payment is made) for each month’s unpaid allowance.

Conditions for Imprisonment

The general rule is that a Distress Warrant should be issued first to recover the dues from the defaulter’s assets. Only if the recovery fails can a sentence of imprisonment be passed. However, there are exceptions:

• If the defaulter clearly has no property to attach.
• If the defaulter admits their inability or refusal to pay.
• In such cases, the Magistrate may proceed directly to the sentencing phase.

The Execution Warrant (Form 18)

If a Distress Warrant remains unexecuted, the court issues a warrant for imprisonment as per Form 18 in Schedule 2 of the CrPC. Notably, this form is not classified as “bailable” or “non-bailable,” as it is a warrant for the execution of a sentence rather than for an appearance in court.

Warrant Should be Sequential or Simultaneous?

A legal question is currently being examined by the High Court of Kerala in the case of S. Mumthas and Another v. M. Nizar @ Nizarudeen and Another [OP (Crl.) 802/2024].

The High Court is considering whether:

• The law must be strictly interpreted to mean a Distress Warrant must be fully exhausted before a Sentence Warrant for imprisonment is issued.
• Both warrants can be issued at the same time to ensure the prompt recovery of maintenance and prevent the defaulter from evading the law.

In Abdul Rahiman v State of Kerala [2011 (4) KLT 125] the Kerala High Court observed that sentence of imprisonment can be imposed against a person only after issuing a distress warrant for levying the amount due as arrears of maintenance in the manner provided for realization of fine.

Maintenance Enforcement: CrPC v. BNSS

The Procedural Continuity under BNSS

Under Section 144(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Magistrate still retains the power to issue a warrant for levying the amount due. The reference for the “manner of levying fines” has shifted from Section 421 of the CrPC to Section 469 of the BNSS.

Electronic Service and Digital Evidence

A significant change in the BNSS is the emphasis on digital communication. While the CrPC was silent on digital communication, the BNSS allows for issue of digital notices for enforcement, and filing of electronic evidence such as financial records, bank statements, and digital footprints as evidence of “sufficient means” to maintain the wife.

The “Sequential v. Simultaneous” Debate under BNSS

The case currently before the Kerala High Court (S. Mumthas v. M. Nizar) is particularly important because the ruling will set the precedent for how Section 144(3) of the BNSS is implemented.

If the High Court rules in favour of simultaneous issuance, it will mean that a Magistrate can issue a warrant to attach property and a warrant for arrest/imprisonment at the same time.

Reference

1. Mumthas and Another v. M. Nizar @ Nizarudeen and Another [OP (Crl.) 802/2024].