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Judgment
Gautam Kumar Choudhary, J
Heard, learned counsel for the parties.
The instant Writ Petition (Crl.) has been filed under Article 226 of the Constitution of India for issuance of a Writ in the nature of Mandamus directing upon the Officer-in-Charge, Delha Police Station, Gaya to execute distress warrant dated 02.05.2025 issued against the Respondent No.6 in connection with Original Maintenance Case No.288/ 2023.
It is argued by learned counsel for the petitioner that an order of maintenance under Section 125 Cr.P.C. was passed in favour of the petitioner on 17.12.2024, ex-parte against her husband/ respondent No.6. However, more than one and half years have elapsed, but the order has not been complied with despite the distress warrant being issued by the learned Family Judge on 30.04.2025.
It is submitted that the respondent No.6/ husband is Resident of Delha, District- Gaya, Bihar. It is contended that non-execution of the warrant has led to the destitution of petitioner/ wife.
This Court is conscious that the power to issue writs under Article 226 of the Constitution of India is plenary in nature; however, such power must be exercised with due care and circumspection, particularly where an effective alternative remedy is available. Insofar as distress warrant is concerned, it is issued under the provisions of the Code of Criminal Procedure, which provides for an alternative executive machinery for its execution. This Court cannot step into the shoes of the Trial Court to ensure the execution of each and every warrant so issued. At the same time, if orders passed by a court of law are not complied with, it would undermine the very foundation of the rule of law. In such a situation, this Court would be duty-bound to take appropriate steps to ensure that the writ and authority of the court are not rendered ineffectual.
From the material on records, it appears that show cause was issued by the learned Addl. Principal Judge, Addl. Family Court-II, Ranchi for non-execution of distress warrant dated 02.05.2025 (Annexure-7).
It is submitted that the said show cause has also remained un-responded.
This Court cannot be a mute spectator, if the order / warrant issued by the learned Trial Court is not complied with by the executing arms of of the State i.e. Police.
The mode of enforcement of order of maintenance is provided under Section 147 of the BNSS which reads as under:-
“A copy of the order of maintenance or interim maintenance and expenses of proceedings, as the case may be, shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be, is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance, or as the case may be, expenses, due.”
Under the scheme of the B.N.S.S., 2023, there is no impediment in executing a distress warrant beyond the jurisdiction of the Court concerned. The Family Court has ample power under Section 147 read with Sections 461 and 471 of the BNSS, 2023 to get the distress warrant executed beyond the local jurisdiction of the Court concerned.
Magistrate is bound to comply with the order duly passed by the Principal Judge family court, and in the event of non-compliance, he can be proceeded against under section 222 of the BNS read with Section 379 of the BNSS.
Under the circumstances, learned Addl. Principal Judge, Addl. Family Court-II, Ranchi, is directed to take all coercive steps for enforcement of the said maintenance order.
The instant Writ Petition (Crl.) stands disposed of. Pending I.A., if any, also stands disposed of.