The ruling was delivered last week by Justice Roshan Dalvi on a plea filed by a city resident, who had challenged the non-bailable warrant issued by a lower court against him for failure to pay maintenance to his wife.
The wife had moved a lower court against her husband for payment of maintenance under Domestic Violence Act. The court asked him to pay maintenance but he failed to do so and arrears mounted to Rs 56,000.
The wife then moved the court again, seeking arrest of her husband for failing to pay the amount. The court appointed Flavia Agnes to assist the court as 'amicus curiae'. She drew the attention of the judge to Section 28(2) of Domestic Violence Act which says that nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposing of an application under section 12 or under sub-section(2) of section 23.
The High Court held that provisions of CrPc relating to maintenance, as also the Domestic Violence Act, which are beneficial legislations for protection of women, are required to be construed so as to benefit those persons for whom they are enacted.
"The Magistrate issuing warrant therefore, seems to have followed the Special Procedure for the arrest of husband for non-payment of the maintenance ordered to be paid. "Such procedure and such procedural order is within the framework of Section 28(2) of the Domestic Violence Act and hence cannot be faulted as it is not seen to be illegal," the judge ruled.
"Hence, the non-bailable warrant is confirmed. The writ petition filed by the husband is dismissed," the judge said.
The husband's counsel E B Dixit cited a Kerala High Court order in which the interim protection order passed under section 23 (1) of Domestic Violence Act had been breached.
In that case, the court held that penalty for breach was provided only in section 31 of the Domestic Violence Act.
The Kerala High Court had also ruled that non-bailable warrant cannot be issued for breach of protection order and arrest cannot be directed by issuing non-bailable warrant before the Magistrate takes cognisance of offence under section 31(1) of CrPc.
It was held that the Magistrate could not issue non-bailable warrant as had been done in that case.
Hence, the husband contended that the issue of order of non-bailable warrant was not in accordance with the complete procedure laid down under the Domestic Violence Act read with provisions of CrPc.
However, the Bombay High Court was of the opinion that the Magistrate had legally followed the procedure laid down under section 28(2) of Domestic Violence Act ordering the arrest of the husband for not paying maintenance to wife.
The judge ordered that the non-bailable warrant shall be executed against the husband unless he pays off the entire arrears now due and payable. Accordingly, the petition filed by the husband challenging the issuance of non-bailable warrant was dismissed by the High Court.