Mashood vs State of U.P. and 2 Others — Domestic Violence | Allahabad HC (2025)

Mashood vs State of U.P. and 2 Others — Domestic Violence | Allahabad HC (2025)

What the court decided

AI extract

Outcome

Application under Section 528 BNSS allowed; order dated 4.10.2024 passed in Execution (Maintenance) Case No. 502 of 2021 quashed; liberty left to the court concerned to enforce or recover the arrears of maintenance as a money decree of a civil court in accordance with the Code of Civil Procedure, as per Rajnesh (supra).

Issue for consideration

Whether the order dated 4.10.2024 passed in Execution (Maintenance) Case No. 502 of 2021, issuing recovery warrant and arrest warrant against the applicant for arrears of maintenance without following the CPC enforcement procedure indicated in Rajnesh v. Neha, is liable to be quashed.

Court's answer

The application under Section 528 BNSS is allowed and the order dated 4.10.2024 passed in Execution (Maintenance) Case No. 502 of 2021 is quashed.

Ratio / Principle

The court concerned may proceed to enforce or recover the arrears of maintenance as a money decree of a civil court in accordance with the provisions of the Code of Civil Procedure, as per the law laid down by the Supreme Court in Rajnesh (supra).

Key takeaways

Since the matter relates to a settled position of law, the opportunity to call the counter affidavit from opposite party no. 2 is dispensed with.ratio¶10

Detailed headnote1 paragraphs

Quashing of execution order in maintenance matter — Allahabad High Court allowed application under S. 528 BNSS and quashed order dated 4.10.2024 of Additional Principal Judge, Family Court, Siddharth Nagar in Execution (Maintenance) Case No. 502 of 2021 (arising out of S. 128 Cr.P.C.), whereby recovery warrant and arrest warrant had been issued against the applicant for arrears of maintenance — enforcement of maintenance orders is to proceed, as directed by the Supreme Court in Rajnesh v. Neha, (2021) 2 SCC 324, by treating the order as a money decree of a civil court under the CPC (Ss. 51, 55, 58, 60 r/w Order XXI; also referable to S. 28A Hindu Marriage Act, 1956 or S. 20(6) D.V. Act) — executing court left free to enforce or recover the arrears in accordance with the CPC — counter affidavit of opposite party no. 2 dispensed with as the point was covered by settled law.

Neutral Citation No. - 2025:AHC:142611

Court No. - 74

Case :- APPLICATION U/S 528 BNSS No. - 5106 of 2025

Applicant :- Mashood Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Mohammad Mustafa Counsel for Opposite Party :- G.A.

Hon'ble Sanjay Kumar Pachori,J.

Sri Mohammad Mustafa Khan, learned counsel for the applicant and Sri Alok Mishra, 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 order dated 4.10.2024 passed by Additional Principal Judge Family Court, Siddharth Nagar in Execution (Maintenance) Case No. 502 of 2021, arising out of an application under Section 128 of Cr.P.C., whereby recovery warrant as well as arrest warrant has been issued to recover the arrears of maintenance amount against the applicant.

Learned counsel for the applicant submits that the impugned order dated 4.10.2024 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 as well as arrest warrant against the applicant without following the procedure as provided in the Civil Procedure Code.

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.

In view of the above facts and circumstances, the application is allowed and the order dated 4.10.2024 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 as per the law laid down by the Supreme Court in Rajnesh (supra).

Order Date :- 20.8.2025 T. Sinha

Digitally signed by :- TRIPTI SINHA High Court of Judicature at Allahabad