Allahabad High Court
MOHD. SALEEMversusSTATE OF U.P. AND 6 OTHERS
- Decided
- Bench
- DEEPAK VERMA
Holding
The application under Section 528 BNSS is dismissed as the matter has already been decided and no further interference is warranted.
Summary
Mohd. Saleem filed an application under Section 528 of the BNSS seeking to quash two orders dated 05.01.2026 and 19.06.2026 issued by the Family Court, Muzaffarnagar, which authorized a recovery warrant for arrears of maintenance in a case arising under Section 128 of the Criminal Procedure Code. The applicant had earlier challenged an earlier order dated 16.06.2025 under Section 125 CrPC, and the High Court had partially allowed that petition, quashing the order and directing that maintenance arrears be recovered as a money decree under the Civil Procedure Code. In the present application, the applicant again contended that the recovery proceedings were not in conformity with the CPC and Supreme Court precedent in Rajnesh v. Neha. The Court observed that the matter had already been decided, that the applicant was re‑litigating the same facts, and therefore no further interference was warranted. Consequently, the application under Section 528 BNSS was dismissed.
Issues considered
- Whether the order dated 16.06.2025 and subsequent recovery warrant for maintenance arrears can be quashed under Section 528 BNSS.
- Whether the applicant may re‑file the same relief after the earlier petition was disposed.
- Whether the recovery of maintenance arrears must follow the procedure prescribed in the Civil Procedure Code.
Legislation cited
- Code of Civil Procedure, 1908 — s. 51, 55, 58, 60, Order XXI
- Code of Criminal Procedure, 1973 — s. 125, 128
- Domestic Violence Act — s. 20(6)
- Hindu Marriage Act, 1956 — s. 28A
Subjects
- maintenance
- execution of maintenance
- Section 125 CrPC
- Section 128 CrPC
- Civil Procedure Code
- quash order
- BNSS
- recovery warrant
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 33422 of 2026
Mohd. Saleem
.....Applicant(s)
Versus
State Of U.P. And 6 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Asheesh Kumar Tiwari, Dewendra
Singh
Counsel for Opposite Party(s) : G.A.
Court No. - 74
HON'BLE DEEPAK VERMA, J.
1. Supplementary affidavit, filed today, is taken on record.
2. Heard Sri Asheesh Kumar Tiwari, learned counsel for the applicant and
Sri P. P. Pandey, learned AGA for the State.
3. The present 528 BNSS application has been filed to quash the order
dated 05.01.2026 and order dated 19.06.2026 passed by learned
Additional Principal Judge, Family Court no.2, Muzaffar Nagar in Misc.
case no. 902 of 2023 (Husn Jahan and others Vs. Mohd. Salim) under
section 128 of Cr.P.C. Police Station-Chhapar District-Muzaffar Nagar,
pending in the court of learned Additional Principal Judge, Family Court
no.2, Muzaffar Nagar.
4. Earlier applicant challenge the order dated 16.06.2025 passed in
proceeding U/s 125 Cr.P.C. and this Court vide order dated 29.07.20245
passed following order:
"Sri Asheesh Kumar Tiwari, learned counsel for the applicant and Sri Karunakar Singh, learned A.G.A.
for the State are present.
The present application under Section 528 of the B.N.S.S has been filed to quash the ex-parte order dated
13.09.2013 passed by Additional Chief Judicial Magistrate, Court No. 1, Muzaffarnagar in Maintenance
Case No. 166/11 of 2011 arising out of an application under Section 125 of Cr.P.C. as well as order dated
16.06.2025 passed by Additional Principal Judge, Family Court No. 2, Muzaffarnagar in Execution of
Maintenance Case No. 902 of 2023, arising out of an application under Section 128 of Cr.P.C whereby
recovery warrant has been issued to recover the arrears of maintenance.
NA528 No. 33422 of 2026
2
Learned counsel for the applicant does not want to press the relief to quash the ex-parte judgment order
dated 13.09.2013.
The aforesaid relief is dismissed as not pressed.
Learned counsel for the applicant submits that the impugned order 16.06.2025 has been passed without
considering the facts and circumstances and position of law as law laid down by the Supreme Court in
Rajnesh Vs. Neha & Anr. (2021) 2 SCC 324, wherein it has been directed that the enforcement/ execution
of orders 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.
It is further submitted that the impugned order has been passed to enforce the recovery of arrears of
maintenance by issuing recovery warrant against the applicant or attachment without following the
procedure as provided in the Civil Procedure Code.
The matter is related to settled position of law.
In view of the above facts and circumstances, the application is partly allowed and the order dated
16.06.2025 is hereby quashed.
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."
5. Applicant again filed application against the order passed for recovery
proceeding U/s 125 Cr.P.C. Since, Court has already considered the
submission raised in earlier petition filed by the applicant and disposed
off the petition and now again applicant has filed the same for the same
set of facts for proceeding U/s 125 Cr.P.C., no interference is warranted at
this stage.
6. The present 528 BNSS application of applicant-Mohd. Saleem, is
hereby dismissed with the aforesaid observation.
(Deepak Verma,J.)
September 8, 2026
Nitin Verma
Digitally signed by :-
NITIN KUMAR VERMA
High Court of Judicature at Allahabad
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