Smt. Rekha Jaiswal and Another vs Deep Chandra Gupta — Maintenance and Alimony | Allahabad HC (2025)

Smt. Rekha Jaiswal and Another vs Deep Chandra Gupta — Maintenance and Alimony | Allahabad HC (2025)

What the court decided

AI extract

Outcome

No substantive relief granted at this stage; notice ordered to be issued to the opposite party and the matter listed for hearing on 1.8.2025 ('The matter requires consideration.').

Issue for consideration

Whether the children of the deceased maintenance claimant (Smt. Shusheela) are entitled to substitution in the Section 128 Cr.P.C. enforcement proceedings and to claim the arrears of maintenance that had already accrued to her, on the footing that such accrued arrears devolve upon them as her heirs.

Court's answer

Tentative observation recorded in the order: while the right to maintenance was personal to the mother (Smt. Shusheela) and exercisable only by her against the father, the arrears of maintenance already accrued were argued to devolve upon the revisionists (her children) as heirs, and the court recorded that the arguments of the revisionists 'has force and found substance in it'. Final adjudication was deferred (notice issued; matter listed for 1.8.2025), so this cannot be treated as a settled holding of the court.

Ratio / Principle

Operative direction of this interim order: notice to be issued to the opposite party and the matter listed on 1.8.2025, the court having stated that the matter requires consideration.

Detailed headnote1 paragraphs

Allahabad High Court (Lucknow Bench), Court No. 12 (Alok Mathur, J.), Criminal Revision No. 602 of 2025, order dated 27.5.2025: Interim order on a revision under Section 438/442 BNSS challenging the Family Court, Lucknow order dated 23.4.2025 in Criminal Misc. Case No.1440 of 2024 (Section 128 Cr.P.C.) rejecting the revisionists' application for substitution. The Section 125 Cr.P.C. maintenance application of the revisionists' mother, Smt. Shusheela, against Deep Chandra Gupta had been allowed on 16.4.2024 (Rs.10,000/- per month from 19.11.2018 to 16.4.2024; Rs.13,000/- per month thereafter); on her death during the Section 128 Cr.P.C. recovery proceedings, her children sought substitution, contending that the accrued arrears of maintenance devolve upon them as heirs. Learned counsel relied on Rajnesh Vs. Neha, (2021) 2 SCC 324 and Annadurai Vs. Jaya (Madras High Court, Crl. M. P. No.s 3028 and 9397 of 2022, decided 21.4.2023). The court recorded that the arguments of the revisionists 'has force and found substance in it', stated that the matter requires consideration, issued notice and listed the case for 1.8.2025. No final adjudication was made; the precedents were noted as relied on by counsel and were not engaged with by the court.

Court No. - 12 Case :- CRIMINAL REVISION No. - 602 of 2025 Revisionist :- Smt. Rekha Jaiswal And Another Opposite Party :- Deep Chandra Gupta Counsel for Revisionist :- Himanshu Vaish,Amrendra Singh,Sunder Lal

Hon'ble Alok Mathur,J.

Heard Sri Himanshu Vaish, learned counsel for the revisionist, who by means of the present revision under Section 438/442 of BNSS has challenged order dated 23.4.2025 passed by Family Court, Lucknow in Criminal Misc. Case No.1440 of 2024 under Section 128 of Cr.P.C. wherein the application for substitution has been rejected.

It has been submitted on behalf of the revisionists that application under Section 125 Cr.P.C. was moved by their mother, namely, Smt. Shusheela against their father who is opposite party in the present case. It has been submitted that the said application was allowed on 16.4.2024 wherein amount of Rs.10,000/- per month from 19.11.2018 to 16.4.2024 and Rs.13,000/- per month thereafter. Despite the aforesaid orders the opposite party did not comply with the same and accordingly proceedings under Section 128 Cr.P.C. were instituted. It is stated that during pendency of the proceedings Smt. Shusheela, the mother of the revisionists passed away and accordingly the revisionists being children of the claimant moved application for substitution. It has been submitted by learned counsel for the revisionists that undoubtedly right to maintenance was personal right which could have been exercised only by the mother against their father but with regard to amount of arrears of maintenance which has already accrued the revisionists would have a right to claim the said property considering that their mother was the natural owner of the said property and the same would devolve upon the revisionists and accordingly the arguments of the revisionists has force and found substance in it.

Learned counsel for the revisionists has relied upon the judgment of Supreme Court in the case of Rajnesh Vs. Neha, (2021) 2 SCC 324 and Annadurai Vs. Jaya, decided on 21.4.2023 by Madras High Court in Crl. M. P. No.s 3028 and 9397 of 2022. The matter requires consideration.

Issue notice.

List on 1.8.2025.

(Alok Mathur, J.)

Order Date :- 27.5.2025 RKM.

Digitally signed by :- RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench