Allahabad High Court
SARMAN KUSHWAHAversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Bench
- DEEPAK VERMA
Holding
The order authorising recovery and arrest warrants for maintenance arrears is ultra vires; enforcement must be through a money decree under the Code of Civil Procedure.
Summary
The applicant, Sarman Kushwaha, challenged an order dated 06‑12‑2025 of the Family Court, Mahoba, which had issued a recovery warrant and an arrest warrant to enforce arrears of interim maintenance granted to his wife under Section 125 of the Criminal Procedure Code. The wife had obtained interim maintenance on 09‑05‑2022 and later sought enforcement through an application under Section 147 of the BNSS, leading the trial court to issue the warrants. Relying on the Supreme Court’s decision in Rajnesh v. Neha (2021) SCC 324, the applicant argued that maintenance arrears must be enforced as a money decree under the Civil Procedure Code, not by recovery or arrest warrants. The High Court agreed, held the impugned order ultra vires, and partially allowed the application, quashing the order and directing that enforcement proceed via civil procedure mechanisms. The judgment reiterates that enforcement of maintenance must follow the procedures laid down in the Hindu Marriage Act, the Domestic Violence Act, and the CPC.
Issues considered
- Whether a recovery warrant and arrest warrant can be issued for the enforcement of arrears of maintenance under Section 125 CrPC.
- Whether the procedure prescribed by the Supreme Court in Rajnesh v. Neha for enforcing maintenance orders must be followed.
Legislation cited
- Code of Civil Procedure, 1908 — s. 51, 55, 58, 60, Order XXI
- Code of Criminal Procedure, 1973 — s. 125, 128
- Hindu Marriage Act, 1955 — s. 28A
- Protection of Women from Domestic Violence Act, 2005 — s. 20(6)
Subjects
- maintenance
- Section 125 CrPC
- enforcement
- recovery warrant
- arrest warrant
- Civil Procedure Code
- Supreme Court precedent
- family law
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 31769 of 2026
Sarman Kushwaha
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Virendra Kumar
Counsel for Opposite Party(s) : G.A.
Court No. - 74
HON'BLE DEEPAK VERMA, J.
1. Heard learned counsel for the applicant and learned A.G.A. for the
State.
2. This application under Section 528 BNSS has been filed by the
applicant with prayer to quash the impugned order dated 06.12.2025
passed by learned Family Court, Mahoba in Misc. Case No. 227 of 2022
(Smt. Ram Devi and others Versus Sarman Kushwasha) arising out of
Case No.05 of 2020, under section 125 Cr. P.C., Police Station Charkhari,
District Mahoba.
3. Learned counsel for the applicant submits that opposite party no.2 is
wife of applicant and on account of some matrimonial dispute, opposite
party no.2 initiated proceeding U/s 125 Cr.P.C. for interim maintenance
and the same was allowed vide order dated 09.05.2022. For recovery of
interim maintenance, opposite party no.2 moved application U/s 147
BNSS before trial court and trial court issued recovery warrant against the
applicant, in pursuance of order passed on 09.05.2022. Applicant's
counsel placed reliance over the judgment passed by Hon'ble The Apex
Court in the case of Rajnesh vs. Neha & Another (2021)2 SCC 324,
recovery warrant and arrest warrant cannot be initiated by the court for
recovery of arrears and maintenance.
4. Learned counsel for the applicant submits that the order passed by the
learned Principal Judge, Family Court, Mahoba is against the provision
laid down by the Apex Court in Rajnesh vs. Neha & Another (2021)2
NA528 No. 31769 of 2026
2
SCC 324, wherein it has been directed that the enforcement/execution of
order of maintenance, may be enforced under Section 28A of the Hindu
Marriage Act, 1956; 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 C.P.C.,
more particularly Sections 51, 55, 58, 60 read with Order XXI of C.P.C.
5. It is further submitted that the impugned order has been passed to
enforce the recovery of arrears of maintenance by issuing recovery
warrant as well as arrest warrant against the applicant without following
the procedure as provided in the Civil Procedure Code.
6. The matter is related to settled position of law. There is no other point
for consideration except issuing recovery warrant as well as arrest warrant
to recover the arrears of maintenance, due to this reason, the opportunity
to call the counter affidavit from the opposite party no. 2 is dispensed
with.
7. In view of the above facts and circumstances, the application is partly
allowed and the order dated 06.12.2025, is hereby quashed.
8. It is made clear that the court concerned may proceed to enforce or
recover the arrears of maintenance amount as money decree of a civil
court as per provisions of the Code of Civil Procedure as per the law laid
down by the Supreme Court in Rajnesh (supra).
(Deepak Verma,J.)
September 15, 2026
T.S.
Digitally signed by :-
TRIBHUWAN SINGH
High Court of Judicature at Allahabad
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