Allahabad High Court
ABDUL AZIZversusSTATE OF U.P. AND 2 OTHERS
- Decided
- Bench
- GAUTAM CHOWDHARY
Holding
The recovery warrant issued under Section 128 CrPC is lawful, and the application under Section 482 CrPC is dismissed.
Summary
The applicant filed a petition under Section 482 of the Criminal Procedure Code seeking to quash a recovery warrant issued under Section 128 by the Family Court, which was based on a maintenance order of Rs.3,500 per month granted to his wife and two minor children under Section 125. The applicant alleged that the warrant was illegal and arbitrary because he had not paid the maintenance amount. The State opposed, stating that the warrant was a proper execution measure for the unpaid maintenance. The High Court examined the record and found no illegality or impropriety in the issuance of the recovery warrant. Consequently, the Court dismissed the Section 482 application as meritless and vacated any interim order.
Issues considered
- Whether the recovery warrant issued under Section 128 CrPC for non‑payment of maintenance is lawful.
- Whether the High Court can quash the recovery warrant under its inherent powers under Section 482 CrPC.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 125, 128, 482
Subjects
- maintenance
- Section 125 CrPC
- Section 128 CrPC
- Section 482 CrPC
- family law
- execution of decree
- recovery warrant
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 482 No. - 13178 of 2022
Abdul Aziz
.....Applicant(s)
Versus
State Of U.P. And 2 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Hardev Prajapati, Javed Alam, Nasim
Uddin
Counsel for Opposite Party(s) : Atmaram Nadiwal, Dinesh Kumar
Yadav, G.A., Monu Upadhyay,
Muhammad Azam
Court No. - 82
HON'BLE DR. GAUTAM CHOWDHARY, J.
1. None appears on behalf of the opposite party Nos. 2 and 3, even in the
revised call.
2. Heard learned counsel for the applicant, Shri Mrityunjay Tiwari,
learned A.G.A. for the State and perused the material brought on record.
3. The present application under Section 482 Cr.P.C. has been filed for
quashing of recovery warrant order dated 16.04.2022 passed by learned
Additional Principal Judge, Family Court First, Maharajganj, in Case No.
817 of 2019 (Roshan Fatma Vs. Abdul Aziz), under Section 128 Cr.P.C.
4. Learned counsel for the applicant submits that earlier the application
under Section 125 Cr.P.C. filed by the wife was allowed by the concerned
court directing the applicant to pay Rs. 3,500/- per month to the opposite
party No. 2 and her two minor children. With the passage of time, when
no amount was paid by the applicant the wife moved an application
seeking recovery of due arrears amount, wherein the impugned order has
been passed issuing recovery warrant against the applicant, which is
illegal and arbitrary.
5. Learned A.G.A. for the State has opposed the above prayer and stated
that the monthly maintenance was granted to the wife in the year 2016. It
appears that on non payment of monthly maintenance amount non
bailable warrant has been issued against him, which is just, legal and
proper, therefore, applicant does not deserve any indulgence.
6. After hearing the rival submissions advanced by both the learned
counsel for the parties as well as after perusing the record, this Court finds
that Rs. 3,500/- was granted to the wife and her two minor children. When
no any amount was paid by the applicant to the deserted wife, she was
A482 No. 13178 of 2022
2
having no option but to file execution application for recovery of due
arrears of amount of maintenance as awarded, wherein the court
concerned passed the impugned recovery warrant against the applicant.
Further, learned counsel fails to show any illegality, impropriety or
infirmity in the impugned order.
7. In view of above, the present application filed under Section 482
Cr.P.C. has no merit and deserves to be dismissed. Accordingly, it is
dismissed.
8. Interim order, if any, stands vacated.
(Dr. Gautam Chowdhary,J.)
May 5, 2026
Mustaqeem.
Digitally signed by :-
MOHD MUSTAQEEM KHAN
High Court of Judicature at Allahabad
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