Allahabad High Court

AJAY CHAHARversusSTATE OF U.P. AND 5 OTHERS

Decided: 4 May 2026
Bench: GAUTAM CHOWDHARY

Holding

The Court held that the recovery proceedings under Section 144(3) BNSS may be set aside provided the applicant deposits the arrears in the stipulated instalments and continues to pay the monthly maintenance.

Summary

The applicant, Ajay Chahar, filed an application under Section 528 of the BNSS seeking to quash a recovery warrant issued by the Family Court, Mathura, under Section 144(3) BNSS for non‑payment of maintenance ordered in a Section 125 Cr.P.C. case. He contended that the maintenance amount of Rs.10,000 per month was fixed without considering his income and that the opposite party had deserted him. The State opposed, arguing the recovery proceeding was lawful. The High Court observed that the applicant was not given a chance to be heard before the recovery warrant was issued and, in the interest of justice, allowed him a final opportunity to pay the arrears in instalments and continue monthly maintenance. The court set aside the recovery proceedings conditionally, directing payment of arrears in eight equal instalments and continuation of maintenance, with coercive action to resume if the applicant defaults.

Issues considered

Whether the recovery warrant issued under Section 144(3) BNSS without the applicant's participation can be quashed under Section 528 BNSS.
Whether the maintenance award under Section 125 Cr.P.C. can be enforced through coercive recovery proceedings in the present circumstances.
Whether the applicant should be granted an opportunity to pay arrears before further coercive action is taken.

Legislation cited

BNSS — s. 144(3), 528
Code of Criminal Procedure, 1973 — s. 125

Subjects

maintenance
family law
Section 528 BNSS
Section 144(3) BNSS
Section 125 Cr.P.C.
recovery warrant
quashing order
arrears

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 15919 of 2026

Ajay Chahar
.....Applicant(s)
Versus

State Of U.P. And 5 Others
.....Opposite
Party(s)

Counsel for Applicant(s) : Ashwani Kumar, Sati Shanker Tripathi
Counsel for Opposite Party(s) : G.A.

Court No. - 82
HON'BLE DR. GAUTAM CHOWDHARY, J.

1. Heard learned counsel for the applicant, learned A.G.A. for the State
and perused the material brought on record.

2. This application under Section 528 BNSS has been filed by the
applicant (husband) for quashing of impugned order 10.11.2025 by which
the learned Principal Judge, Family Court, Mathura, issued recovery
warrant against the applicant in Case No. 1214/ IX/ 2024 (Maya Vs.
Ajay), under Section 144(3) BNSS, Police Station Highway, District
Mathura.

3. Learned counsel for the applicant submits that monthly maintenance of
Rs. 10,000/- per month to the wife including her four minor children has
been awarded from the date of order, i.e., 21.02.2022, without considering
the income of the applicant. Learned counsel for the applicant further
submits that the opposite party no.2 has deserted the applicant and that the
applicant tried his level best to bring her back but all in vain. He further
submits that the opposite party No. 2 instead of living with the applicant,
had filed an application under Section 125 Cr.P.C. which has been
allowed by the learned Family Court vide exparte impugned judgement
and order, by which the applicant was directed to pay exorbitant amount
of maintenance to the private opposite parties without considering the
income of the applicant. With the passage of time, when no amount was
paid by the applicant the impugned recovery warrant has also been issued
against him, therefore, the impugned order is illegal and is liable to be
quashed by this Court.

4. Learned A.G.A. for the State has opposed the prayer and the impugned
recovery proceeding initiated against the applicant is perfectly legal, just
and proper and call for no interference by this Court.

5. Learned counsel for the applicant further submits that the applicant is
ready to pay entire due amount towards arrears of maintenance as has
NA528 No. 15919 of 2026
2

been awarded by the learned Family Court and he also agrees to pay
monthly maintenance amount to opposite party No. 2 as awarded,
provided some indulgence may be granted.

6. Considering the submissions advanced by learned counsel for the
parties as well as the fact that the impugned order has been passed
without participation of the applicant in the proceedings against and
proceeding of recover has also been issued against the applicant, this
Court is of the view, that in interest of justice, one last opportunity may be
granted to applicant to participate in the proceedings. Accordingly,
present application under Section 528 BNSS is disposed of in the
following terms.

(A) Subject to applicant depositing entire due amount towards the arrears
of maintenance in eight equal installments, of which the first installment
shall be paid on or before 05.06.2026, the second installment shall be paid
on or before 05.07.2026 and onwards, respectively, and continuing to pay
monthly maintenance as awarded by the Court below by 15th day of each
calendar month starting from May, 2026, the impugned recovery
proceedings under shall stand set aside.

(B) The amount so deposited by the applicant shall be paid over to the
opposite party no.2 after due verification by the concerned Court.

(C) In case, the applicant deposits the aforesaid amount within the
aforesaid period, no coercive action shall be taken against him.

(D) It goes without saying that in case the applicant fails to deposit the
aforesaid amount the protection granted by this Court shall automatically
stand vacated and the court concerned shall be at liberty to proceed
against him in accordance with law.

7. The Registrar (Compliance) is directed to communicate the order
passed by this Court to the concerned Family Court.

(Dr. Gautam Chowdhary,J.)
May 5, 2026
Mustaqeem.

Digitally signed by :-
MOHD MUSTAQEEM KHAN
High Court of Judicature at Allahabad

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