Partly allowed

Shiv Pratap Singh v. State of U.P. and Another

Allahabad HC14 May 2025NA528/3612/2025

Case brief

AI extract

What is this about?

Applicant sought quashing of a maintenance award and recovery warrants issued by the Family Court. The High Court held the Section 528 BNSS application against the maintenance order was not maintainable as revision is the remedy, dismissed it on that count, and directed expeditious decision of the pending recall application with consideration of installment payment.

What did the court decide?

Application against maintenance order dismissed as not maintainable; Family Court directed to decide Section 145(2) BNSS recall application within two months and consider installment payment of arrear

Shiv Pratap Singh Vs State of U.P. and Another — Maintenance and Alimony | Allahabad HC (2025)

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Neutral Citation No. - 2025:AHC:80097

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Court No. - 71

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Case :- APPLICATION U/S 528 BNSS No. - 3612 of 2025

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Applicant :- Shiv Pratap Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Akhilesh Srivastava,Saksham Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Raj Beer Singh,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material brought on record.

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This application under Section - 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as BNSS) has been filed seeking following relief:-

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"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to allow the present application and quash the order dated 13.01.2025, passed by Principal Judge, Family court, Aligarh by which learned Court concerned has proceeded to issue recovery warrant against the applicant in Case No. 2012 of 2024 (Minakshi Vs. Shiv Pratap Singh) under Section 147 of BNSS read with Section 128 Cr.P.C., which was filed by opposite party no. 2 for execution of order dated 28.08.2024, passed in Case No. 50 of 2024, under Section 125 Cr.P.C., Police Station Mahila Thana, District Aligarh, in the Court of Principal Judge, Family Court, Aligarh."

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So far impugned judgment dated 28.08.2024 is concerned, by that order Family Court has granted maintenance under Section 125 Cr.P.C. in favour of opposite party no.2. In view of law laid down in case of Smt. Anjana Mukhopadhyay Vs. State of U.P. and Another 2023:AHC:2129445, Ashu Jain Vs. State of U.P. and 3 Others 2023 :AHC:165660 and Liaqat Hussain Vs. Jainab Praveen and Another AIRONLINE 2020 ALL 2497, it is clear that an order of maintenance or interim maintenance is not an interlocutory order and that against such orders, aggrieved person has remedy of revision. It was held that against such order, application under Section - 482 Cr.P.C. is not maintainable. In BNSS the provisions of Section 482 Cr.P.C. 1973 have been reincarnated in Section 528 of BNSS and thus similar analogy

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would be applicable to the application under Section 528 BNSS.

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Thus, it is apparent that this application under Section - 528 BNSS against impugned order dated 28.08.2024 is not maintainable. Accordingly, this application under Section - 528 BNSS against impugned order dated 28.08.2024 is dismissed as not maintainable.

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As far as the impugned order dated 13.01.2025 is concerned, by that order the Family Court has issued recovery warrants against applicant in proceedings under Section 147 BNSS / 128 Cr.P.C. Learned counsel submitted that judgment dated 28.08.2024 is an ex-parte order and applicant has already filed an application under Section 145(2) Cr.P.C. to recall the said ex-parte judgment but learned Family Court arbitrarily referred the said matter for mediation and recovery warrants have been issued against applicant in the recovery proceedings. It was submitted that impugned order dated 13.01.2025 is against law and thus liable to be set aside.

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Learned AGA has opposed the application and submitted that there is no illegality or perversity in the impugned order.

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It appears from record that the opposite party no.2 was awarded maintenance by order dated 28.08.2024 and in pursuance to that order she has initiated recovery proceedings under Section 147 BNSS / 128 Cr.P.C. Meanwhile, the opposite party no.2 has filed application under Section 145(2) BNSS to recall the ex-parte judgtment dated 28.08.2024. It was pointed out that the said application under Section 145(2) BNSS has not been decided so far, whereas recovery warrants are being issued in the recovery proceedings.

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In view of aforesaid, the Family Court concerned is directed to

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expedite the hearing of application filed by applicant under Section 145(2) BNSS and to decide the same as early as possible, preferably within a period of two months from the date of production of copy of this order before the court concerned, provided there is no legal impediment. It is also directed that in case applicant moves an application before the Family Court concerned within a period of two weeks from today, to pay / deposit the arrears of maintenance in installments, the same shall be considered and decided expeditiously in accordance with law by the Family Court concerned.

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The application u/s 528 BNSS is disposed of with aforesaid observations.

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Order Date :- 15.5.2025 'SP'/-

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Digitally signed by :- SANDEEP PAL High Court of Judicature at Allahabad

Shiv Pratap Singh v. State of U.P. and Another

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