Bombay High Court
Farhad Jabeen Mulla vs Najamus Sahar M. Mulla And Anr on 12 December, 2025
2025:BHC-AS:54817
27-WP-2335-2023 (FCJ)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2335 OF 2023
1. Farhad Jabeen Mulla
Age :- 47 years, Occupation-Nil
R/at-132, Parmar Garden A,
Wanowrie, Pune 411040 ...Petitioner No.1
2. Mast. Abdul Azeem,
Age :-15 years, Occupation-Student
R/at - 132, Parmar Garden A,
Wanowrie, Pune 411040. ...Petitioner No.2
Versus
1. Najamus Sahar M. Mulla
Age- 49 years, Occupation - Software Engineer,
R/at: 905, Lusture Bldg
Sun City Park, Bullunder
Lake Junction off
Sarjapur Road
Near Koramangala
Bangalore - 560034
Also At: Flat No. 204, Second Floor
Vishwatara Apartments
Vishawkarma Park
Near Redya- Chi- Takkar
Pratibha Nagar
...Respondent No.1
Kolhapur 416008.
Kartikeya Goti, PA
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27-WP-2335-2023 (FCJ)
...Respondent No.2
2. Muinuddin Mulla
...Respondent No.3
3. Muhammad Munir
4. Aquila Muhammad Munir Mulla ...Respondent No.4
5. Farrukh Muhammad Mulla ...Respondent No.5
Respondent Nos. 2, 3, 4 & 5
[formal parties] All residing at :
Flat No. 204, Second Floor, Vishawtara
Apartments, Vishawkarma Park, Near Redya-
Chi- Takkar, Pratibha Nagar, Kolhapur 416 008
6. State of Maharashtra ...Respondent No.6
Mr. Sanjay Bhojwani a/w. Mr. Pravin Ambulkar, for the Petitioner.
Mrs. Dhanalakshmi Krishnaiyer, APP, for the Respondent- State.
Mr. Najamus Sahar M. Mulla, party-in-person, present.
CORAM : MANJUSHA DESHPANDE, J.
RESERVED ON : 27th NOVEMBER 2025
PRONOUNCED ON : 12th DECEMBER 2025
JUDGMENT :-
1. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.
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2. The Petitioners have approached this Court in its writ jurisdiction under Articles 226 and 227 of the Constitution of India assailing two orders passed by the JMFC, Pune, in Criminal MA No.45 of 2012 vide order passed below Exhibit 135 dated 04.11.2022 and vide order dated 03.09.2021, passed below Exhibit 128.
3. The Petitioner No.1 is the ex-wife of the Respondent No.1. The Petitioner No.1 has instituted two proceedings against the Respondent No.1 under two different enactments. One for Divorce filed under the Dissolution of Muslim Marriages Act, 1939, in which an order dated 31.08.2015 came to be passed, granting maintenance of Rs. 7,000.
Simultaneously, the Petitioner No.1 had also filed an application under Section 12 under the Protection of Women from Domestic Violence Act, 2005 (PWDVA), before the JMFC, Cantonment Court, Camp, Pune, in Criminal MA. No.45 of 2012. Pending the application under Section 12 of the PWDVA, 2005, the learned Magistrate was pleased to Kartikeya Goti, PA Page 3 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) grant interim maintenance of Rs. 15,000/- p.m. to the Petitioner No.1 and Rs. 7,500/- p.m. in favour of Petitioner No.2-minor child, with rent allowance of Rs. 7,500/- per month vide order dated 14.12.2012. The order passed by the JMFC, Pune, was then modified by the Additional Sessions Judge, Pune, vide order dated 31.08.2013, granting Rs. 8,000/- to the Petitioner and Rs. 7,500 p.m. to the Petitioner No.2, towards maintenance, while the allowance towards rent was set aside.
4. Resultantly, Writ Petition No. 3685 of 2013 and Writ Petition No. 4085 of 2013, were filed by the Petitioners and the Respondent No.1 assailing the order of Additional Sessions Judge, Pune. This Court, vide order dated 14.10.2013, granted stay to the order dated 31.08.2013, passed by the Additional Sessions Judge, Pune. Finally, this Court enhanced the maintenance amount to Rs. 12,000/- per month for the Petitioner No.1, Rs. 7,500/- for the Petitioner No.2 and the rental allowance was reduced to Rs. 6,000/- Kartikeya Goti, PA Page 4 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) from the date of filing of the Writ Petition vide order dated 27.11.2018.
5. In the meanwhile, pursuant to passing of a Decree of Divorce, the Petitioner ceased to receive the interim maintenance of Rs. 7,000/-. Therefore, the Petitioner again moved an application below Exhibit 35 before the learned Magistrate seeking additional maintenance, in view of the cessation of maintenance granted in the Divorce proceedings. The learned Magistrate partly allowed the application vide order dated 25.11.2016, awarding additional interim maintenance of Rs. 5,000/- per month.
6. On this background, an application was filed by the Petitioners, below Exhibit 128 seeking issuance of warrant of arrest under Section 125(3) of the Code of Criminal Procedure, 1973, read with Rule 6(5) of the Rules framed under the Protection of Women from Domestic Violence Act, 2005, with a prayer to issue warrant of arrest, against the Kartikeya Goti, PA Page 5 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) Respondent No.1 for the unpaid arrears of maintenance vide application dated 19.12.2018.
7. In the application, it was stated that there is an outstanding balance of Rs. 55,000 which the Respondent No.1 has failed to pay. Hence, warrant of arrest be issued against him so as to make him suffer an imprisonment for a period of one month towards the unpaid maintenance allowance. This application, below Exhibit 128, was partly allowed by the JMFC, Cantonment Court, Pune, vide order dated 03.09.2021, by holding that, it is not necessary to issue warrant of arrest, however, the Petitioners have a right to execute the order passed below Exhibit 35 and Exhibit 1.
8. The Petitioners, thereafter, again filed an application for issuing Distress Warrant against the Respondent No.1 for the outstanding maintenance amount, which has been decided by the JMFC, Cantonment Court, Pune, vide order dated 04.11.2022, holding that the enforcement of maintenance order can be resorted by taking aid of Section 20(6) of the DV Kartikeya Goti, PA Page 6 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) Act, 2005 and Section 128 of the Cr.P.C. Therefore, the Petitioner should resort to the remedy as provided under law, as such the application for issuing Distress Warrant is not tenable.
9. The Petitioners have approached this Court against the two orders passed by the JMFC Cantonment Court, Pune, in Criminal MA No.45 of 2012, passed below Exhibit 128 and order below Exhibit 135, whereby the application for issuance of Arrest Warrant and application for issuance of Distress Warrant, for recovery of arrears of maintenance have been rejected on the ground of maintainability.
10. Mr. Bhojwani, learned Advocate for the Petitioners submits that, it is not in dispute that the order of maintenance granted by the JMFC, Pune, was modified by this Court by passing a common order in Writ Petition No. 3685 of 2013 with Writ Petition No. 4085 of 2013, thereby granting an amount of Rs. 12,000/- per month towards the maintenance of Petitioner No.1; Rs. 7500 for Petitioner No.2; was Kartikeya Goti, PA Page 7 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) maintained and amount towards rent was deducted to 6,000/- per month from the date of the Writ Petition. All these amounts were directed to be paid from the date of application. As a result, the Respondent No.1 was required to pay an amount of Rs.25,500/- per month from the date of the application. Since these orders have not been challenged by the Respondent No.1, they attained finality. Hence, the Respondent No.1 is bound to pay this amount.
11. At the same time, by a subsequent order dated 25.11.2016, the JMFC, Cantonment Court, Pune, has modified the order of maintenance by directing the Respondent No.1 to pay an additional amount of Rs. 5,000/- towards maintenance after the end of Iddat period, i.e, on 31.11.2016. As a result, the Respondent No.1 is now bound to pay an amount of Rs. 30,500/- p.m. to the Petitioners.
12. It is submitted that, since the Respondent No.1 was avoiding to pay the interim maintenance, the Petitioners were constrained to file an application under Section 125(3) of the Kartikeya Goti, PA Page 8 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) Code of Criminal Procedure, as it is the only remedy available to the Petitioners, for execution of order against the Respondent No.1. The Respondent No.1 has avoided to pay the maintenance without sufficient reason, this conduct of the Respondent amounts to breach of orders due to which, the Petitioner was constrained to file application for issuance of warrant under Section 125(3) of the Cr.P.C. for recovering the amount due, in the manner provided for, levying fines.
13. It is submitted that, the application of the Petitioners has been wrongly rejected by the JMFC, Pune, on erroneous ground that, the remedy for execution of arrears of maintenance is available to the Petitioners under Section 128 of the Cr.P.C read with Rule 6 (5) of the Rules framed under PWDV Act.
14. It is submitted that, even though an amount of Rs. 55,000 is quoted in the application at Exh-128, however, while advancing the arguments the petitioner had submitted an Excel Sheet containing correct figures of arrears of interim Kartikeya Goti, PA Page 9 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) maintenance, which comes to Rs. 3,47,500/- as total due for 2019 as claimed in the Excel Sheet submitted before the JMFC (Exh-L on Page No114 of the Writ Petition). On the background of huge arrears of maintenance, the prayer made by the petitioner for the issuance of Arrest Warrant, should have been allowed by the learned Magistrate. Similarly, when an application below Exh-135 was filed for issuance of Distress Warrant for recovery of arrears of sum of 9,98,000/- produced in one Excel Sheet, it was again rejected on the same ground, i.e., the Petitioners should file an application under section 128 of Cr.P.C., for enforcement of the order of maintenance.
15. The learned Advocate submits that, both orders proceeded on assumption, that do not align with the statutory framework. Relying on the principle, that maintenance provisions are intended to prevent destitution and vagrancy and must, therefore, be construed liberally in favour of the entitled beneficiary, it is submitted that, on this background , Kartikeya Goti, PA Page 10 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) the reasoning recorded by the learned Magistrate, that coercive steps cannot be taken for a meager difference in arrears, overlooks the very objective sought to be achieved by such beneficial legislation.
16. As regards order below Exh-135, on the application seeking issuance of a Distress Warrant, it is submitted that, the insistence of the learned Magistrate to institute separate proceedings under Section 128 of the Cr.P.C., overlooks the saving provisions under the D.V Act, which permits recourse to the mechanism provided under the Code of Criminal Procedure, including issuance of a Distress Warrant under Section 421.
17. Relying on the judgment of Shantha Alias Ushadevi & Anr. V/s. B.G. Shivananjappa1, it is submitted that the liability to pay maintenance is a continuous obligation; considering object of enacting the D.V. Act, which is a beneficial legislation, it has to be liberally construed in favour of the 1 (2005) 4 SCC 468 Kartikeya Goti, PA Page 11 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) wife and children. A plain reading of Section 125(3) of the Cr.P.C. makes it clear that, in the event of failure to comply with an order of maintenance without sufficient cause, the Magistrate is empowered to issue a warrant for levying the amount due, in the manner provided for levying fines.
While passing the impugned order, the learned Magistrate failed to appreciate that the Respondent No.1 has consciously defaulted in paying interim maintenance for years together, despite having means and capacity to pay having been employed in a leading IT Company, holding a good position with a handsome salary. The conduct of the Respondent No.1 shows that, he is avoiding to pay the arrears of maintenance by resorting to delaying tactics.
18. Mr. Bhojwani further submits that, the total arrears due from the Respondent have now mounted to approximately Rs.14,61,525/-. On this background, the Petitioners seek the indulgence of this Hon'ble Court to pass appropriate orders. Kartikeya Goti, PA Page 12 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ)
19. Responding to the arguments of the learned Advocate for the Petitioner, the Respondent No. 1, Mr. Najamus Shar M. Mulla, who appears in person, has vehemently opposed the Writ Petition. It is his submission that, there was no necessity to file the application for issuance of Arrest Warrant or a Distress Warrant, in view of the fact that, the Petitioners have been receiving substantial amounts towards maintenance over the years. He submits that the arrears now claimed are inflated and much more than the entitlement of the Petitioners, hence, he disputes the amount mentioned by the Petitioners in the Excel Sheet annexed to the writ petition showing outstanding arrears as on November 2025.
20. It is submitted that, the Petitioners have themselves contributed to the delay in trial and are only interested in the maintenance amount rather than proceeding with the main proceedings on merits. He further submits that, in the application at Exh-128, the Petitioners have clearly stated that, the arrears of maintenance are to the extent of Kartikeya Goti, PA Page 13 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) Rs. 55,000/-, but while making oral submissions, have exaggerated the figure out of proportion. Therefore, the learned Magistrate has correctly passed the order, by relying on the amount as stated in the application.
21. In the order passed on application at Exh-135, the learned Magistrate has rightly observed that, it appears that already a huge amount is paid by the Respondent, therefore there is no need for issuance of Distress Warrant and the Petitioners have to take recourse to Section 128 of Cr.P.C for execution of order. In support of his submission he relies on the observation made by Hon'ble Supreme Court in Rajnesh V/s. Neha & Another2, laying down guidelines for enforcement of interim orders. He submits that, the said judgment, unambiguously, holds that, so far enforcement of maintenance is concerned it can be claimed by taking aid of Section 20(6) of DV Act and Section 128 of the Cr.P.C . 2 (2021) 2 SCC 324 Kartikeya Goti, PA Page 14 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ)
22. He has further drawn my attention to the Excel Sheet, purportedly filed by the Petitioners during the hearing of the application at Exhibit 128, which provides a breakup of the arrears of maintenance due and payable. The Excel Sheet discloses that, at the end of 2018, an excess amount had been paid to the Petitioner. It is submitted that, since the said document is filed by the Petitioners themselves, they cannot deny its content and the fact that, he has been making payment of maintenance from time to time. It is, therefore, contended that, there was no necessity for the issuance of either an Arrest Warrant or a Distress Warrant as prayed by the Petitioners. Thus, according to him, no case for interference is made out by the Petitioners.
23. After hearing the respective parties and going through the documents placed on record, with the assistance of the respective Advocate, I have carefully examined the impugned orders in the background of the statutory framework and the historical trajectory of the proceedings. Section 125(3)of the Kartikeya Goti, PA Page 15 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) Cr.P.C. contemplates that when a person fails, without any sufficient cause, to comply with a maintenance order, the Magistrate may issue a Warrant, for levying the amount due in the manner provided for levying fines.
24. The payment of maintenance being a continuous cause, arising each month, its non-payment constitutes a distinct default, unless justified by sufficient cause. At the same time, it needs to be appreciated that, when there is a dispute between the parties, as to the computation of the correct amount of maintenance, any excess amount paid needs to be accounted for in future, the maintenance is ordinarily to be determined by the executing Court, upon verification of records, including previous orders and from the bank statements of the respective parties.
25. Thus, the dispute between the parties revolves around the quantum of arrears of maintenance. Such disputes are required to be determined by the executing court. The Petitioners are seeking coercive execution on one hand, while Kartikeya Goti, PA Page 16 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) on the other hand, the arrears are disputed by Respondent No. 1, who claims to have made excess payment to the Petitioners.
26. It is nobody's case that the Respondent has not paid any amount towards maintenance. The Excel Sheet filed by the Petitioners itself reflects, that the Respondent has been depositing amount (s) towards arrears from time to time. The recent calculation filed by the Petitioners show that, the total amount paid by the Respondent till November 2025 is Rs. 33,11,475/- and the balance is of Rs. 14,61,525/-, however, this amount is disputed by the Respondent. .
27. The learned Magistrate has declined to pass an order on the application filed by the Petitioners under Section 125 (3) and 421 of Cr.P.C. In this regard, it would be apposite to rely on the final directions contained in Paragraph No. 132 of the judgment of Rajnesh (supra) in the context of execution and enforcement of orders of maintenance which reads thus :
Kartikeya Goti, PA Page 17 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) "132. For enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28-A of the Hindu Marriage Act, 1955; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order 21."
27. On this background there is no doubt that, so far as execution of orders of maintenance is concerned, the applicant has to avail remedy as provided under Section 128 of Cr.P.C. In case of failure to get the order executed under Section 128 of Cr.P.C., the applicant may resort to coercive methods as provided under Section 125(3) as well as 421 of the Cr.P.C. Since the learned Magistrate was satisfied that, the case for forcible execution of the order was not made out by the Petitioners, he has rightly passed an order directing to avail remedy under Section 128 of the Cr.P.C.
28. The impugned orders have been passed in a factual context without computation of the arrears. The first step that is required to be taken by the applicant for execution of the Kartikeya Goti, PA Page 18 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) orders is under Section 128 of the Cr.P.C. or Section 20(6) of the PWDVA. Only on failure to execute the order through these mechanisms, a party can take recourse to remedy of forcible execution as provided under law.
29. In the present case, since the drastic measures of Arrest and Distress Warrant were sought by the Petitioner, the learned Magistrate has rightly directed the Petitioner to file appropriate proceedings under Section 128 of the Cr.P.C.
Hence, it would not be appropriate to interfere with the orders passed by the Magistrate at this stage, more so in view of the competing claims made by the parties against each other. In my view, the entire issue of arrears and execution requires consideration by the executing court.
30. As a result, the Writ Petition is partly allowed in the following terms :
(i) The impugned order dated 03.09.2021 and 04.11.2022 are not interfered with, however, the Petitioner is at liberty to Kartikeya Goti, PA Page 19 of 20 th 12 December 2025 ::: Uploaded on - 12/12/2025 ::: Downloaded on - 12/12/2025 23:21:36 ::: 27-WP-2335-2023 (FCJ) file fresh application for execution of order of maintenance with computation of arrears.
(ii) The learned Magistrate shall undertake a fresh computation of arrears, after hearing both parties and after verifying the respective calculation sheets, payment proofs, and alleged excess payments.
(iii) Upon determination of the arrears, if the Respondent No.1 fails to make payment of arrears, the Petitioner shall be at liberty to file fresh application under Section 125(3) and 421 of the Cr.P.C. and Section 20(6) of the DV Act.
31. With the above observations the Writ Petition Stands disposed of.
32. Rule is made absolute in the above terms.
(MANJUSHA DESHPANDE, J.) {
Kartikeya Goti, PA
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