Introduction:

In A v. M and Another, CRL RC(MD) No.804 of 2023, cited as 2025 LiveLaw (Mad) 461, the Madras High Court examined a crucial and often misunderstood aspect of criminal procedure—whether trial courts can directly issue a Non-Bailable Warrant (NBW) in maintenance arrears proceedings without adhering to the statutory mandate of sequential process under the Code of Criminal Procedure (CrPC). Justice L. Victoria Gowri, while adjudicating the criminal revision petition filed by the husband, delved deeply into the legislative purpose of Section 125 CrPC, which is intended as a socio-beneficial provision ensuring financial protection to destitute spouses and children while simultaneously balancing the liberty and procedural rights of the person directed to pay such maintenance. The facts reveal that the wife and daughter had successfully obtained a maintenance order directing the husband to pay ₹6,000 to the wife and ₹4,000 to the daughter every month, but despite this adjudication, he failed to comply for over a year. Consequently, the mother and daughter initiated execution proceedings, during which the Judicial Magistrate issued a Non-Bailable Warrant after concluding that the husband had wilfully defaulted despite having sufficient means.

Arguments:

Aggrieved, the husband approached the High Court challenging the warrant, contending that the Magistrate had acted contrary to Section 87 CrPC, which prescribes a procedural hierarchy—first summons, then bailable warrant, and only thereafter, a non-bailable warrant—if the earlier steps fail. He argued that the immediate issuance of NBW was procedurally defective, illegal, violative of natural justice, and disproportionate. He further highlighted that proceedings under Section 125 and 128 CrPC, and proceedings under the Domestic Violence Act, fall in a hybrid realm—quasi-civil and quasi-criminal—and therefore coercive mechanisms such as NBW must be exercised sparingly and not as the first choice. The husband asserted that Section 125 CrPC permits imprisonment for arrears only up to one year, whereas the arrears here spanned 71 months; thus, a distraint warrant under Section 128 CrPC, aimed at attaching property to recover arrears, ought to have been the lawful first step. He also contended that the maintenance order had already been challenged and was under revision before the Sessions Court, and hence the Magistrate initiating coercive execution proceedings simultaneously amounted to multiplicity of proceedings and judicial impropriety. The husband insisted that the Magistrate’s order failed to indicate the specific statutory provision under which the NBW was issued, thereby making the warrant cryptic and legally unsustainable.

The wife, represented by Mr. B. Rajesh Saravanan, vehemently opposed the petition, submitting that the husband had persistently evaded his legal responsibilities and had not paid a single rupee of the arrears despite repeated opportunities. According to her, the NBW was issued only after due notice and hearing, and was a justified mechanism to secure the attendance of a chronic defaulter who had both the means and the intention to disobey the maintenance order. She argued that Section 125 CrPC is not meant to be a dead letter and courts are constitutionally and morally obligated to ensure that women and children—who constitute the most vulnerable segments of society—receive court-ordered support. The wife emphasized that execution proceedings in maintenance matters are unique because their object is not punitive but remedial; the purpose is to compel compliance rather than inflict incarceration. She asserted that since the husband was deliberately avoiding payment, NBW was the only legally viable tool to ensure enforcement and prevent further abuse of the judicial process. The wife insisted that mere pendency of revision does not automatically stay execution unless an express stay order exists, which was absent in this case. Thus, she contended that the Magistrate acted within jurisdiction.

Judgement:

Justice Victoria Gowri began her analysis by reiterating the philosophical foundation of Section 125 CrPC—social justice, constitutional morality, and the protection of financially dependent family members. The Court emphasized that while enforcement of maintenance orders is crucial, the same must be achieved in a manner consistent with procedural fairness, judicial restraint, and statutory safeguards. The Court scrutinized the Magistrate’s order and found that it lacked a fundamental legal requirement: explicit mention of the provision under which the NBW was issued. The Court distinguished between “distress warrant” under Section 125(3), which is punitive and designed to compel imprisonment for failure to comply, and “distraint warrant” under Section 128, which is civil in nature and aimed at attaching movable or immovable property to secure arrears. The Court held that the Magistrate failed to identify whether the warrant was punitive or coercive, rendering the order opaque and procedurally defective. Justice Gowri further observed that the statutory scheme embedded under Section 87 CrPC mandates a hierarchical process: first summons, then bailable warrant, and finally a non-bailable warrant only if earlier modes are unsuccessful. The Magistrate, however, had bypassed the entire statutory procedure and mechanically issued the NBW without demonstrating why a lesser intrusive method could not secure the husband’s presence. The Court held that the NBW was issued not as a last resort, but as the first, which struck at the heart of criminal jurisprudence and constitutional guarantees against arbitrary arrest. The Court also rejected the husband’s contention regarding complete immunity because pending revision does not prevent a Magistrate from executing a lawful order unless a stay is granted; absence of stay meant execution must continue. Nevertheless, the Court agreed that though the husband was a defaulter, the procedural irregularity could not be ignored as it amounted to violation of a fundamental legal safeguard. Thus, the Court set aside the NBW, directed the Magistrate to comply with procedural requirements before resorting to non-bailable measures, and ordered the husband to deposit 50% of admitted arrears within four weeks, thereby ensuring both compliance and fairness. The Court’s reasoning reaffirmed that the right to liberty is not defeated even when the litigant is wrong, and that the spirit of Section 125 lies in dignified enforcement—not judicial overreach.