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Allahabad High Court

MOHD. SALEEMversusSTATE OF U.P. AND 6 OTHERS

Decided

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

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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