ISHTIYAK AHMADversusSTATE OF U.P. AND 2 OTHERS

                                                          Reserved on: August 17, 2026
                                                          Delivered on : September 8, 2026

          HIGH COURT OF JUDICATURE AT ALLAHABAD
                APPLICATION U/S 528 BNSS No. - 31390 of 2026

Ishtiyak Ahmad
                                                                     .....Applicant(s)
                                        Versus

State Of U.P. And 2 Others
                                                                          .....Opposite
                                                                                Party(s)

Counsel for Applicant(s)              : Bipin Kumar Rao, Indra Deo Mishra
Counsel for Opposite Party(s)         : G.A.

In Chamber
                    HON'BLE PRASHANT MISHRA-I, J.

1. Heard Mr. Bipin Kumar Rao and Mr. Indra Deo Mishra, learned counsel
for the applicant and learned A.G.A. representing the State.

2. The prayer of the applicant in the instant application is quoted herein
below:

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be
pleased to set aside the order dated 31.03.2026 passed by Gram Nyayalaya, Machhali
shehar, Jaunpur in Case no 40/2023 [Tabassum and Another Versus Ishtiyak and
others] Under section 12 of the Protection of Women from Domestic Violence Act,
2005 Relating to Police Station Pawara Distt. Jaunpur.

It is further prayed that this Hon'ble court may also be pleased to stay the effect and
operation of order dated 31.03.2026 passed by learned Judge Gram Nyayalaya,
Machhalishaher Distt. Jaunpur in Case No 40/2023 [Tabassum and Another Versus
Ishtiyak and others] U/s 12 of the Protection of Women from Domestic Violence Act,
2005 relating to P.S. Pawara Distt. Jaunpur till the pendency of this Cr. Misc.
Application before this Hon;ble court. Or This Hon'ble court may pass any other
order or direction in favour of the applicant which this Hon'ble Court may deem fit
and proper on the basis of facts and circumstances of the case."

3. Learned counsel for the applicant has submitted that the Principal Judge,
Family Court, Jaunpur, vide an ex parte judgement and order of maintenance
dated 14.03.2023 passed against applicant-Ishtiyaq, awarded an amount of
Rs. 3000/- per month to his wife/opposite party No. 2 and an amount of Rs.
2000/- per month to opposite party No. 3/daughter, payable from
16.06.2022. It is also submitted by learned counsel for the applicant that vide
impugned judgement and order dated 31.03.2026, the applicant was also
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directed by the learned trial court to provide one room, kitchen, latrine,
bathroom for opposite party No. 2. The applicant was also directed to
provide maintenance allowance to the tune of Rs. 2000/- per month to
opposite party No. 2 and Rs. 1000/- per month to daughter /opposite party
No. 3 and that amount has been awarded to them from 18.06.2022 i.e. from
the date of filing of the application. It is further submitted that the learned
trial court has committed an error by not adjusting the amount of
maintenance earlier awarded and which is in clear violation of the law laid
down by the Hon'ble Apex Court in the case of Rajnesh Vs. Neha and
Another, (2021) 2 SCC 324. Learned trial court by the impugned judgement
and order has also directed the applicant to pay an amount of Rs. 40,000/- as
compensation to the complainant within two months from the date of the
order i.e. 31.03.2026. Learned counsel for the applicant drew the attention of
this Court on paragraph Nos. 59, 60 and 128.1 of the case of Rajnesh Vs.
Neha and Another (supra) which are quoted herein below:

"59. In Sudeep Chaudhary vs. Radha Chaudhary the Supreme Court directed
adjustment in a case where the wife had filed an application under Section 125 CrPC,
and under HMA. In the Section 125 proceedings, she had obtained an order of
maintenance. Subsequently, in proceedings under the HMA, the wife sought alimony.
Since the husband failed to pay maintenance awarded, the wife initiated recovery
proceedings. The Supreme Court held that the maintenance awarded under Section
125 Cr.P.C. must be adjusted against the amount awarded in the matrimonial
proceedings under HMA, and was not to be given over and above the same.

60. It is well settled that a wife can make a claim for maintenance under different
statutes. For instance, there is no bar to seek maintenance both under the DV Act and
Section 125 CrPC, or under HMA. It would, however, be inequitable to direct the
husband to pay maintenance under each of the proceedings, independent of the relief
granted in a previous proceeding. If maintenance is awarded to the wife in a
previously instituted proceeding, she is under a legal obligation to disclose the same
in a subsequent proceeding for maintenance, which may be filed under another
enactment. While deciding the quantum of maintenance in the subsequent proceeding,
the civil court/Family Court shall take into account the maintenance awarded in any
previously instituted proceeding, and determine the maintenance payable to the
claimant.

..................................................................

128.1. (i) Where successive claims for maintenance are made by a party under
different statutes, the court would consider an adjustment or set-off, of the amount
awarded in the previous proceedings(s), while determining whether any further
amount is to be awarded in the subsequent proceeding."

4. It is also submitted by learned counsel for the applicant that as per the
instructions received from his client a recall of ex-parte judgement and order
of maintenance dated 14.03.2023 has bee filed before the learned trial court
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concerned by the applicant.

5. Learned A.G.A. for the State could not dispute the aforesaid contentions
of the learned counsel for the applicants.

6. This Court finds it expedient to hold that, in view of the judgement of the
Hon'ble Apex Court in the case of Rajnesh Vs. Neha and Another (supra),
it would be improper to direct the husband to pay maintenance under each of
the proceedings independent of the relief granted in previous proceedings.

7. However, the applicant is directed to deposit a sum of Rs. 1,00,000/-
(Rupees One Lakh Only) before the court of learned Principal Judge, Family
Court, Jaunpur within a period of two weeks from the date of production of
certified copy of this order, which shall be released in favour of opposite
party No. 2 of the instant application, namely, Tabassum. Learned Principal
Judge, Jaunpur is also directed to decide the recall application, if any, filed
by the applicant-Ishtiyaq Ahmad, against the ex parte judgement and order
dated 14.03.2023 passed by the Principal Judge, Family Court, Jaunpur
preferably within a period of three months from the date of production of
certified copy of this order, after giving an opportunity of hearing to the
parties.

8. The applicant and opposite party No. 2 to the instant application are also
directed to furnish the details of the legal proceedings to the learned court of
Principal Judge, Family Court, Jaunpur, as has been contemplated in the case
of Rajnesh Vs. Neha and Another (supra).

9. Principal Judge, Family Court, Jaunpur is also directed to consider the
adjustment of the maintenance etc. awarded in any proceedings arising under
the D.V. Act while deciding the maintenance application of opposite party
No. 2-Tabassum on merits.

10. In case, the aforesaid recall application filed by the applicant is allowed
and the application under Section 125 Cr.P.C. is decided after hearing the
parties, then the maintenance awarded under Section 12 of D.V. Act shall be
taken into consideration and adjusted against the amount awarded under
Section 125 Cr.P.C., in the light of observations made in the case of Rajnesh
Vs. Neha and Another (supra).

11. As regards the impugned judgement and order dated 31.03.2026 passed
by the learned Gram Nyayalaya, Machhli Sheher, Jaunpur in Case No.
40/2023, it is found that the amount awarded as compensation and towards
other expenses has not been adjusted with the earlier judgment and order
passed by the learned Principal Judge, Family Court. Hence, for a period of
three months or till disposal of the recall application, whichever is earlier,
the effect and operation of aforesaid judgement and order 31.03.2026 passed
by Gram Nyayalaya, Machhali Shehar, Jaunpur against the applicant, shall
be kept in abeyance.
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                                    12. With the aforesaid directions the instant application U/s 528 B.N.S.S.
                                    stands disposed of.

                                    13. In case, opposite party No. 2 is aggrieved, she is at liberty to approach
                                    this Court.

                                    14. Copy of this order be sent to the concerned trial court within 48 hours for
                                    necessary information and compliance. Since opposite party No. 2 is not
                                    represented before this Court, office is also directed to send the copy of this
                                    order to opposite party No. 2 within 48 hours for necessary information and
                                    compliance.


                                                                                          (Prashant Mishra-I,J.)
                                    September 8, 2026
                                    Kashifa




Digitally signed by :-
KASHIFA
High Court of Judicature at Allahabad