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2024 DIGILAW 1127 (ALL)

Rakesh Kumar Singh v. State of U. P.

2024-04-25

ARUN KUMAR SINGH DESHWAL

body2024
JUDGMENT : Arun Kumar Singh Deshwal, J. 1. Heard learned counsel for the applicants and learned A.G.A. for the State. 2. The instant application has been filed seeking the quashing of the recovery warrant and non-bailable warrant dated 27.10.2023 as well as the entire proceeding of Criminal Misc. Case No. 35 of 2023 (Smt. Beauty Singh @ Avni vs. Rakesh Kumar Singh & others), u/s 31 Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "Domestic Violence Act"), P.S. Bisrakh, District Gautam Buddh Nagar, pending before Civil Judge (J.D.)/F.T.C., court No.2, Gautam Buddh Nagar. 3. The facts giving rise to the present case are that opposite party No.2 had married to applicant No.1, and matrimonial discord between them culminated into the impugned proceeding. Opposite party No.2 filed an application u/s 12 Domestic Violence Act against the present applicants, which was allowed on 15.11.2022 ex parte against the applicants with direction to applicant No.1 to pay the compensation of Rs. 1 Lakh and also Rs. 25,000/-per month as maintenance to opposite party No.2. When the applicant did not pay the amount in pursuance of the order dated 15.11.2022 passed by Civil Judge (J.D.)/FTC, CAW, Gautam Budh Nagar, then opposite party No.2 filed an execution application No. 35 of 2023 in which notices were issued to applicants. When, despite service of notice, the applicants neither appeared before the court nor paid any amount in pursuance of the order passed u/s 12 Domestic Violence Act, then a recovery warrant dated 26.6.2023 was also issued against applicant No.1, who is the husband of opposite party No.2. Thereafter on 27.10.2023 recovery warrant along with non-bailable warrant was also issued against opposite party No.1 then in execution of non-bailable warrant applicant No.1 was arrested and thereafter released on bail by order dated 1.12.2023 with direction to pay the remaining amount. In the present case, the applicants have challenged the execution proceeding as well as the order dated 1.12.2023. 4. This matter was earlier taken up on 27.2.2024. On that date, learned counsel for the applicants had submitted that applicant No.1 was ready to deposit the entire amount in easy instalments. Then the court, to test their bona fide, directed the applicants to deposit Rs. 2 lakh in pursuance of the order dated 27.2.2024 before the court below. 4. This matter was earlier taken up on 27.2.2024. On that date, learned counsel for the applicants had submitted that applicant No.1 was ready to deposit the entire amount in easy instalments. Then the court, to test their bona fide, directed the applicants to deposit Rs. 2 lakh in pursuance of the order dated 27.2.2024 before the court below. However, today, instead of paying the remaining amount, the applicants want to contest this case on merit. 5. learned counsel for the applicants contends that he is not challenging the order dated 15.11.2022 passed by the Civil Judge (J.D.)/F.T.C., CAW, Gautam Buddh Nagar, u/s 12, 18, 19, 20, 22, 23 of the Domestic Violence Act. However, he is aggrieved by the execution proceeding of that order. It is further submitted that in case of violation of payment of monetary relief passed u/s 20 Domestic Violence Act, the only remedy as per Rule 6(5) of Protection of Women from Domestic Violence Rules, 2006 (hereinafter referred to as "Rules, 2006") is the procedure prescribed for the recovery of maintenance u/s 125 Cr.P.C. which can be initiated only by the family court because as per Section 7 of the Family Courts Act, 1984 because it is the family court which is authorised to deal with the matters regarding matrimonial dispute and the court of Civil Judge (J.D.)/F.T.C. has no authority to execute the recovery of monetary relief, passed u/s 20 of Domestic Violence Act. 6. Second contention of learned counsel for the applicants is that apart from the recovery warrant, a non-bailable warrant was also issued against the applicants (applicant No.1, not against all applicants), though the Judicial Magistrate/Civil Judge has no authority to issue non-bailable warrant because, for the compliance of order u/s 20 Domestic violence Act, the procedure prescribed u/s 31 of Domestic Violence Act cannot be adopted. In support of his contention, learned counsel for the applicants has relied upon a judgement of the Delhi High Court in the case of Anish Pramod Patel vs. Kiran Jyot Main; Criminal M.C. No. 1951 of 2023 in which the Delhi High Court observed that for the violation of order, passed u/s 20 Domestic Violence Act, the defaulter cannot be summoned u/s 31 of Domestic Violence Act as the Section 31 is for initiating proceeding for the violation of protection order and not for violation of monetary relief. 7. 7. Per contra, learned A.G.A. submitted that the Domestic Violence Act is a special Act and it has itself provided a detailed procedure and the competent court for passing orders, including trial of the cases under the Domestic Violence Act. Therefore, there is no illegality in the impugned execution proceeding. 8. Considering the aforesaid submissions of learned counsel for the applicants as well as learned A.G.A., two questions arise: (i) which court is competent to execute the order of maintenance passed u/s 20 of the Domestic Violence Act and (ii) whether the special court, mentioned in Domestic Violence Act, has authority to issue a non-bailable warrant as well as recovery warrant to recover the maintenance passed u/s 20 of Domestic Violence Act. For that purpose, it would be relevant to quote Sections 20, 27, and 28 of the Domestic Violence Act as follows:- "Section 20. Monetary reliefs. (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,- (a) the loss of earnings; (b) the medical expenses; (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force. (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. (4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides. (4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides. (5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1). (6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent. Section 27. Jurisdiction. (1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which-- (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act. (2) Any order made under this Act shall be enforceable throughout India. Section 28. Procedure. (1) Save as otherwise provided in this Act, all proceedings under sections 12,18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (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 subsection (2) of section 23." 9. From the perusal of Section 27 of the Domestic Violence Act, it is clear that the court of Judicial Magistrate of the first class or the Metropolitan Magistrate shall be the competent court to grant other orders under the Domestic Violence Act and also to try the offences under this Act. From the perusal of Section 27 of the Domestic Violence Act, it is clear that the court of Judicial Magistrate of the first class or the Metropolitan Magistrate shall be the competent court to grant other orders under the Domestic Violence Act and also to try the offences under this Act. In Section 28, it is mentioned that except the procedure provided under the Domestic Violence Act, all proceedings u/s 12, 18, 19, 20, 21, 22, 23 and offences u/s 31 of the Domestic Violence Act shall be governed by Cr.P.C. 10. Similarly, from Rule 6(5), Rules, 2006, it is clear that the procedure for recovery of any amount should be as the procedure prescribed for the recovery of maintenance u/s 125 Cr.P.C. Rule 6 of Rules, 2006 is being quoted as under:- "6. Applications to the Magistrate.- (1) Every application of the aggrieved person under section 12 shall be in Form II or as nearly as possible thereto. (2) An aggrieved person may seek the assistance of the Protection Officer in preparing her application under sub-rule (1) and forwarding the same to the concerned Magistrate. (3) In case the aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof. (4)The affidavit to be filed under sub-section (2) of section 23 shall be filed in Form III. (5)The applications under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974)." 11. In Cr.P.C., there is a specific provision for recovery of money (other than a fine) in pursuance of an order made under Cr.P.C., and Section 125(3) Cr.P.C. provides the procedure for enforcement of an order of the maintenance. As per the procedure provided u/s 125(3) Cr.P.C., if a person fails to comply with the order passed u/s 125 Cr.P.C. The court may issue a warrant for levying the amount in the manner provided for levying fines u/s 421 Cr.P.C. and may also sentence him for unpaid maintenance for a period of up to one month. The court can also issue a warrant to ensure his presence if, despite the issuance of a recovery warrant u/s 421(1)(a) Cr.P.C., the accused fails to pay the amount. For ready reference, Section 125 and 421 of Cr.P.C. are being quoted as under:- "Section 125. The court can also issue a warrant to ensure his presence if, despite the issuance of a recovery warrant u/s 421(1)(a) Cr.P.C., the accused fails to pay the amount. For ready reference, Section 125 and 421 of Cr.P.C. are being quoted as under:- "Section 125. Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain-- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate 1* * * as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means: Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. Explanation.--For the purposes of this Chapter, (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (3) If any person so ordered fails without sufficient cause to comply with the order, any such 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 months 4[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: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.--If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wifes refusal to live with him. (4) No wife shall be entitled to receive an 5[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (4) No wife shall be entitled to receive an 5[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. Section 421. Warrant for levy of fine. (1) When an offender has been sentenced to pay a fine, the court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-- (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. (2) The State Government may make rules regulating the manner in which warrants under clause (a) of subsection (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender." 12. Therefore, it is clear from the perusal of Sections 125(3) and 421(1)(a) Cr.P.C. that for recovering the amount, the court may issue a recovery warrant to the concerned police officer in the Form-19 of the Second Schedule of Cr.P.C. and can also issue a non-bailable warrant for ensuring the presence of concerned person before the court if the recovery warrant issued u/s 421(1)(a) Cr.P.C. could not be executed by attachment or sale of any movable property belonging to the offender as the provisions of Cr.P.C. are applicable in the proceedings of 125 Cr.P.C. for ensuring the presence of the accused. 13. Therefore, to recover the maintenance amount u/s 20 Domestic Violence Act, the court can issue a non-bailable warrant as well as a recovery warrant to recover the amount and also enforce the respondent who is liable to pay the amount. Even otherwise, in the present case, a non-bailable warrant and recovery warrant were issued against applicant No.1 only and not against other applicants. The non-bailable warrant has already been executed by arresting applicant No.1. Now, the process of execution of the recovery warrant is pending. Therefore, the issue of a non-bailable warrant is now only an academic question. 14. Section 27 of the Domestic Violence Act especially authorises the Judicial Magistrate of the first class to execute and recover any amount or pass any order under the Domestic Violence Act as the Domestic Violence Act is a special Act that not only prescribes the procedure for passing order but also prescribes the court to enforce the order. Even otherwise, Section 425 Cr.P.C. itself provides that a warrant for the execution of a sentence may be issued by the Judge or Magistrate who passes the sentence. Therefore, the Magistrate who has passed order u/s 12 Domestic Violence Act is well within his power to execute the same. Therefore, the submission of learned counsel for the applicant that it is the family court that can execute the order under the Domestic Violence Act is also misconceived. 15. So far as the contention of learned counsel for the applicant regarding Section 20(6) Domestic Violence Act is concerned, that is an enabling provision that permits the court to direct the employer of the respondent to directly pay the maintenance amount to the aggrieved party. 15. So far as the contention of learned counsel for the applicant regarding Section 20(6) Domestic Violence Act is concerned, that is an enabling provision that permits the court to direct the employer of the respondent to directly pay the maintenance amount to the aggrieved party. This provision does not prohibit the court from adopting other procedures mentioned in other sections of the Domestic Violence Act, including the procedure mentioned in Cr.P.C. prescribing the procedure for the recovery of maintenance granted u/s 125 Cr.P.C. 16. So far as the contention of learned counsel for the applicant that for recovery of amount u/s 20 Domestic Violence Act, procedure prescribed u/s 31 of Domestic Violence Act cannot be adopted is concerned, the same is correct, but in the present case the proceeding of recovery is not made u/s 31 Domestic Violence Act and procedure of recovery is being executed as per the procedure prescribed for recovery of maintenance u/s 125 Cr.P.C. which is permissible as per the Rule 6(5), Rules, 2006. 17. In view of the above, this court does not find any illegality in the impugned order and the proceeding. Accordingly, the application is dismissed. 18. The amount already deposited by the applicants, in pursuance of the earlier order of this court dated 27.2.2024, shall be released in favour of opposite party No.2.