Case Note & Summary
The petitioner, Sachin Bodhale, husband of the respondent Sushma Bodhale, challenged an order passed by the learned Magistrate in Misc. Criminal Application No.890/2012 under the Protection of Women from Domestic Violence Act, 2005. The respondent had filed an application under Section 12 of the Act seeking relief, and an interim order for monetary relief was passed. The petitioner failed to pay the interim maintenance, leading the Magistrate to issue a non-bailable warrant (NBW) against him. The Magistrate relied on Section 28(2) of the Act, which allows the court to lay down its own procedure for disposal of applications under Section 12 or Section 23(2). The petitioner invoked Article 227 of the Constitution and Section 482 of the Code of Criminal Procedure (CrPC) to quash the NBW. The High Court examined Section 28(2) and held that it only permits the court to formulate its own procedure for the disposal of the application, not for the enforcement of orders. The recovery of monetary relief is governed by Section 20(6) of the Act, which states that the amount shall be recoverable as a fine under the CrPC. Section 28(1) mandates that proceedings under the Act shall be governed by the CrPC unless otherwise provided. Therefore, the Magistrate cannot issue a non-bailable warrant for non-payment of interim maintenance; the proper remedy is to follow the procedure under the CrPC for recovery of fine. The impugned order was set aside, and the petition was allowed.
Headnote
A) Criminal Procedure - Non-Bailable Warrant - Section 28(2) Protection of Women from Domestic Violence Act, 2005 - Magistrate's Power - The issue was whether a Magistrate can issue a non-bailable warrant for recovery of interim maintenance under the Domestic Violence Act. The Court held that Section 28(2) only allows the court to lay down its own procedure for disposal of an application under Section 12 or Section 23(2), not for enforcement of orders. Recovery of monetary relief must be under Section 20(6) read with Section 28(1) which mandates application of CrPC. Therefore, the Magistrate had no power to issue NBW. (Paras 3-6) B) Domestic Violence - Interim Maintenance - Enforcement - Section 20(6) read with Section 28(1) Protection of Women from Domestic Violence Act, 2005 - The Court clarified that for recovery of interim maintenance, the procedure under the Code of Criminal Procedure, 1973 must be followed, and the Magistrate cannot devise a separate procedure for enforcement. The impugned order issuing NBW was set aside. (Paras 5-6)
Issue of Consideration
Whether a Magistrate under Section 28(2) of the Protection of Women from Domestic Violence Act, 2005 can issue a non-bailable warrant for non-payment of interim maintenance granted under the Act.
Final Decision
The petition is allowed. The impugned order dated 6th May 2014 passed by the learned Magistrate in Misc. Criminal Application No.890/2012 issuing non-bailable warrant against the petitioner is quashed and set aside.
Law Points
- Section 28(2) of Protection of Women from Domestic Violence Act
- 2005 does not empower Magistrate to issue non-bailable warrant for recovery of interim maintenance
- Magistrate can only lay down procedure for disposal of application
- not for enforcement of order
- recovery must be under Section 20(6) read with Section 28(1) as per CrPC
