Delhi District Court
Yasar Khan vs Nida Parveen on 2 December, 2023
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 VIRENDER KUMAR BANSAL provisions of Protection of Women from Domestic Violence Act Digitally signed by VIRENDER KUMAR BANSAL (in short 'the Act'). The application under Section 23 of the Act Date: 2023.12.02 17:35:46 +0530 CR no.199/23 Yasar Khan Vs. Nida Parveen Page 1/13 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 10 th 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 VIRENDER KUMAR Rs.1,84,000/- to the respondent/DH. BANSAL Digitally signed
6. Learned counsel submitted that on 16.11.2023, revisionist by VIRENDER KUMAR BANSAL Date: 2023.12.02 17:35:55 +0530 moved an application for exemption on medical ground CR no.199/23 Yasar Khan Vs. Nida Parveen Page 2/13 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 VIRENDER KUMAR BANSAL Court should not have issued warrant of arrest without Digitally signed exhausting other coercive measures of issuing warrant of by VIRENDER KUMAR BANSAL Date: 2023.12.02 17:36:02 +0530 attachment as mentioned in Section 421 CrPC of movable or CR no.199/23 Yasar Khan Vs. Nida Parveen Page 3/13 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 VIRENDER KUMAR amount by attachment and sale of any movable property. The other BANSAL remedy available was to issue a warrant to the Collector of the Digitally signed by VIRENDER district, authorising him to realise the amount as arrears of land KUMAR BANSAL Date: 2023.12.02 17:36:09 +0530 CR no.199/23 Yasar Khan Vs. Nida Parveen Page 4/13 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 VIRENDER 16.11.2023, but he did not appear on that date and has not made KUMAR BANSAL any payment. Digitally signed by VIRENDER KUMAR BANSAL
13. Learned counsel submitted that ground for his exemption Date: 2023.12.02 17:36:16 +0530 CR no.199/23 Yasar Khan Vs. Nida Parveen Page 5/13 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."
VIRENDER KUMAR BANSAL
15. Learned counsel has also placed reliance on judgment cited Digitally signed by VIRENDER as Pradeep Kumar vs. Smt. Bhawana and Anr., Crl. M.C. KUMAR BANSAL Date: 2023.12.02 17:36:22 +0530 1692/2022, Crl M.A. 7236/2022, wherein the Honorable High Court of Delhi has held as under in under:
CR no.199/23 Yasar Khan Vs. Nida Parveen Page 6/13"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 VIRENDER KUMAR BANSAL Honorable Supreme Court has issued following direction: Digitally signed by VIRENDER "The order or decree of maintenance may be enforced like a KUMAR BANSAL Date: 2023.12.02 17:36:32 +0530 decree of a civil court, through the provisions which are CR no.199/23 Yasar Khan Vs. Nida Parveen Page 7/13 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 VIRENDER note here that on that date, JD was not present. The next date was KUMAR BANSAL given as 31.08.2022. He was produced before the court in Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.12.02 pursuance to NBW issued against him and it was only then that 17:36:38 +0530 CR no.199/23 Yasar Khan Vs. Nida Parveen Page 8/13 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 VIRENDER KUMAR an application of JD and he paid Rs.34,000/- and gave an BANSAL undertaking that he will make payment of Rs.66,000/- on the Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.12.02 next date, which was given as 01.11.2023 i.e. the date already 17:36:46 +0530 CR no.199/23 Yasar Khan Vs. Nida Parveen Page 9/13 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 VIRENDER KUMAR particularly section 51, 55 58 60 read with order XXI. BANSAL Digitally signed by VIRENDER
26. Keeping in view these directions issued by the Honorable KUMAR BANSAL Date: 2023.12.02 17:36:53 +0530 Apex Court, in my opinion, under the provision of Domestic CR no.199/23 Yasar Khan Vs. Nida Parveen Page 10/13 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-
Digitally
bailable warrant was issued on 5th April 2018 which was stayed signed by
VIRENDER
by the High Court after directing the applicant to deposit the VIRENDER KUMAR
KUMAR BANSAL
amount and this is the second non-bailable warrant issued by BANSAL Date:
2023.12.02
the Court." 17:37:00
+0530
CR no.199/23 Yasar Khan Vs. Nida Parveen Page 11/13
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 VIRENDER KUMAR Mumbai, I am of the opinion that the Trial Court has rightly BANSAL Digitally signed by exercised its jurisdiction and issued warrant of arrest against the VIRENDER KUMAR BANSAL Date: 2023.12.02 17:37:07 +0530 CR no.199/23 Yasar Khan Vs. Nida Parveen Page 12/13 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. Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.12.02 17:37:14 +0530 Announced in the open (V. K. BANSAL) court today i.e on Principal District & Sessions Judge, 2nd December, 2023 North East, Karkardooma Courts, Delhi.CR no.199/23 Yasar Khan Vs. Nida Parveen Page 13/13