[Cites 11, Cited by 0]
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
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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/-
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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
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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
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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
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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
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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
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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 ,
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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
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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.
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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
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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
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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
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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
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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 :
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"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
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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
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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.) {
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