Allahabad High Court
KUNAL @ KUNAL GUPTAversusSTATE OF U.P. AND 2 OTHERS
- Decided
- Bench
- DEEPAK VERMA
Holding
The order issuing recovery and arrest warrants for the enforcement of maintenance arrears is ultra vires and is quashed.
Summary
Kunal Gupta filed an application under Section 528 of the BNSS seeking to set aside an order dated 31.01.2026 that had issued both a recovery warrant and an arrest warrant for the enforcement of arrears of maintenance. The maintenance was originally granted to his wife under Section 125 of the Cr.P.C. and she later invoked Section 147 of the BNSS to recover the arrears, prompting the Family Court to issue the warrants. The applicant relied on the Supreme Court’s decision in Rajnesh v. Neha & Another (2021) SCC 324, which held that enforcement of maintenance orders must follow civil procedure provisions and not be effected through criminal recovery or arrest warrants. The High Court held that the Family Court’s order was contrary to the Supreme Court precedent and the procedural requirements of the CPC, and consequently quashed the impugned order. The Court directed that the arrears be recovered as a money decree under the CPC and allowed the applicant’s recall application within three weeks.
Issues considered
- Whether a Family Court can issue recovery and arrest warrants under Section 147 BNSS for the enforcement of maintenance arrears.
- Whether enforcement of a maintenance decree must be carried out under the provisions of the Civil Procedure Code as per the Supreme Court’s decision in Rajnesh v. Neha.
Legislation cited
- B.N.S.S., 2023 — s. 147, 528
- Code of Civil Procedure — s. 51, 55, 58, 60
- Code of Criminal Procedure, 1973 — s. 125, 128
- Hindu Marriage Act, 1956 — s. 28A
- Protection of Women from Domestic Violence Act — s. 20(6)
Subjects
- maintenance
- Section 125 CrPC
- enforcement of maintenance
- recovery warrant
- arrest warrant
- Civil Procedure Code
- Family Court
- Supreme Court precedent
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 33516 of 2026
Kunal @ Kunal Gupta
.....Applicant(s)
Versus
State Of U.P. And 2 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Ajay Sengar
Counsel for Opposite Party(s) : G.A.
Court No. - 74
HON'BLE DEEPAK VERMA, J.
1. Heard Sri Ajay Sengar, 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 set aside the impugned order dated 31.01.2026 and all its
consequential orders passed by the learned Principal Judge, Family Court,
Jalaun at Orai in Criminal Execution Case No. 723 of 2024 (Smt. Ruchi
Gupta and another Versus Kunal ), under Section 147 of B.N.S.S., 2023,
Police Station Jalaun, District Jalaun and quash its entire proceedings,
pending before the learned Principal Judge, Family Court, Jalaun at Orai.
3. Facts in brief are 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 08.08.2024 ex parte. For recovery of interim
maintenance, opposite party no.2 moved application U/s 147 BNSS before
trial court and learned trial court by order 04.10.2024 issued notice/recovery
warrant against the applicant. Learned Principal Judge, Family Court, Jalaun
at Orai vide order dated 31.01.2026 issued recovery warrant as well as arrest
warrant against the applicant, in pursuance of order passed on 04.10.2024.
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.
NA528 No. 33516 of 2026
2
4. Learned counsel for the applicant submits that the order passed by the
learned Principal Judge, Family Court, Jalaun at Orai is against the provision
laid down by the Apex Court in Rajnesh vs. Neha & Another (2021)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 orders dated 31.01.2026, are 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).
9. It is directed that learned Principal Judge, Family Court, Jalaun at Orai to
decide the recall application if filed by the applicant, within a period of three
weeks, from the date of production of certified copy of this order.
(Deepak Verma,J.)
September 8, 2026
T.S.
Digitally signed by :-
TRIBHUWAN SINGH
High Court of Judicature at Allahabad
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