Bholu Kumar Jaiswal vs State of U.P. and Another

AFR

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 623 of 2026

Bholu Kumar Jaiswal		.....Applicant(s)
	Versus
State of U.P. and Another		.....Opposite Party(s)
Counsel for Applicant(s)		: Sunil Mishra
Counsel for Opposite Party(s)		: G.A.

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Court No. - 76

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HON'BLE NAND PRABHA SHUKLA, J.

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Heard Sri M.P.S. Chauhan holding brief of Sri Sunil Mishra, learned counsel for the applicant, learned AGA for the State and perused the record.

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The present application under section 528 B.N.S.S. has been filed with a prayer to allow this application and to quash the impugned orders dated 27.11.2025 and 09.12.2025 passed by Additional Principal Judge, Family Court, Court No. 3, Deoria on the Application No. 8-B dated 26.11.2025 filed by the applicant and application dated 17.09.2025 filed by the opposite party no. 2 whereby the Additional Principal Judge, Family Court, Court No.3, Deoria issued recovery warrant/arrest warrant against the applicant.

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Briefly stated marriage of the applicant was solemnized on 01.07.2021 with the opposite party no. 2 according to Hindu Rites and Rituals and the marriage subsisted till June, 2022. On 01.04.2023, the opposite party no. 2 filed an application under section 125 Cr.P.C. against the applicant in the Court of Principal Judge, Family Court, Deoria and, on 29.11.2023, an Application 12-B was moved seeking interim maintenance which was partly allowed on 29.11.2023 directing the applicant to pay Rs. 4,000/per month as interim maintenance from the date of the order. On 12.08.2024, the Additional Principal Judge, Family Court, Court No.1, Deoria passed an ex-parte order allowing final maintenance of Rs. 5,000/per month from the date of filing of the application i.e. 01.04.2023.

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NA528 No. 623 of 2026

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On 17.08.2024, the applicant filed a recall application under section 145 B.N.S.S. seeking recall of the ex parte order dated 12.08.2024 which was allowed vide order dated 17.5.2025 by setting aside the order granting final maintenance dated 12.08.2024 subject to a condition that the applicant shall deposit cost of Rs. 55,000/- and further directed for payment of interim maintenance of Rs. 5,000/- to the opposite party no. 2.

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Aggrieved by the order dated 17.5.2025, the applicant approached the High Court and filed a Criminal Misc. Application under section 528 B.N.S.S. No. 26316 of 2025 before the Coordinate Bench of this Court and the petition was disposed of vide order dated 24.7.2025 and the order dated 17.5.2025 was modified to the extent of payment of Rs. 15,000/- as cost instead of Rs. 55,000. As nothing was transcribed of setting aside of Rs. 5,000/- per month as interim maintenance, the applicant filed a modification application before the Coordinate Bench on 31.10.2025 which was allowed vide order dated 19.11.2025 modifying the order dated 24.7.2025 and the payment of Rs. 5,000/- per month as interim maintenance was stayed.

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On the other hand, the opposite party no. 2 filed an application on 17.09.2025 under section 144(3) B.N.S.S. before the Principal Judge, Family Court, Deoria for recovery of the interim maintenance of Rs. 92,000/- from the applicant. Pursuant to the same, the recovery warrant/arrest warrant was issued on 09.12.2025.

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The applicant moved an application before the Family Court along with the order dated 19.11.2025 passed by the Coordinate Bench of this Court for necessary compliance but the same was rejected by the order impugned dated 27.11.2025 without application of mind in a cursory manner.

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The main submission of learned counsel for the applicant is that when the order granting final maintenance was passed on 12.08.2024, then the order granting interim maintenance dated 29.11.2003 was deemed to have been merged with the final maintenance. There was no occasion to pass a fresh order for the payment of interim maintenance. Further, the Family Court could have passed a fresh order for final maintenance allowing the recall application by giving opportunity of hearing to the applicant. It has further been urged that though the Coordinate Bench of the High Court had modified the order dated 17.05.2025 reducing the cost to Rs. 15,000/-

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and stayed the order granting interim maintenance yet the orders dated 09.12.2025 and 27.11.2025 have been passed.

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Learned AGA for the State could not dispute the aforesaid facts and circumstances.

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From the perusal of record and the submissions raised, it transpires that the learned Trial Court did not consider the order dated 24.7.2025 passed by the Coordinate Bench of this Court in Criminal Misc. Application under section 528 B.N.S.S. No. 26316 of 2025 wherein the order dated 17.5.2025 was modified and the cost of Rs. 55,000/- was reduced to Rs. 15,000/- and the order granting 5,000/- per month as interim maintenance was stayed. It is also apparent that when the Family Court awarded the final maintenance, the order granting interim maintenance was deemed to have merged with the final maintenance. Therefore, there was no occasion to pass the order granting interim maintenance of Rs. 5,000/- per month as well as issuing arrest warrant/recovery warrant dated 09.12.2025.

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The second proviso to section 125 of the Criminal Procedure Code reads as follows:

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“ Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct.”

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Interim maintenance is a temporary support given during the pendency of the litigation to prevent financial distress which entirely depends upon the discretion upon the Magistrate who may direct from time to time. In the instant case, the order granting interim maintenance of Rs. 4,000/- per month was directed to be paid from the date of the order i.e. 29.11.2023. The order granting final maintenance of Rs. 5,000/- per month was passed on 12.08.2024 which was to be paid from the date of the application, therefore, the order granting interim maintenance was deemed to have merged with the final order of maintenance. However, it is to be clarified that the word ‘merger’ does not imply that the interim maintenance ceases to exist but it only nullifies the order. The principle of merger does not erase the interim maintenance but is replaced by the final

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maintenance. In case the order of final maintenance is challenged or reversed, the Court concerned can exercise its discretion and may pass a fresh order for granting interim maintenance from time to time. In the present case, the learned Family Court had allowed the interim maintenance on 29.11.2023 and the order granting final maintenance was passed on 12.08.2024, hence the interim maintenance was deemed to have merged with the final maintenance. As the order dated 12.08.2024 granting final maintenance was set aside imposing the cost of Rs. 55,000/and subsequently modified to Rs. 15,000/- by the Coordinate Bench of this Court vide its order dated 24.7.2025 and the interim maintenance was stayed, therefore, the applicant was supposed to pay the interim maintenance only for the period of ten months from 29.11.2023 to 12.08.2024 a sum of Rs. 40,000/- and further the matter was to be heard for grant of final maintenance.

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Accordingly, in the light of aforesaid discussion, the orders dated 27.11.2025 and 09.12.2025 are hereby set aside and the matter is remitted back to the Court concerned to pass a fresh order after giving an opportunity of hearing to both the parties as well as in the light of the judgement rendered by the Hon’ble Supreme Court in Rajnesh Vs. Neha and Others, (2021) 2 SCC 324 as expeditiously, preferably within a period of 60 days from the date of this order. It is further directed that the applicant shall pay the arrears of interim maintenance for the period of ten months from 29.11.2023 to 12.08.2024, a sum of Rs. 40,000/- to the opposite party no. 2 within a period of three weeks from the date of the order or else the Court can proceed for its recovery in accordance with law.

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With the aforesaid direction, the application u/s 528 B.N.S.S. is disposed of.

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(Nand Prabha Shukla,J.)

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January 13, 2026 Puspendra

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Digitally signed by :- PUSPENDRA NARAYAN SINGH High Court of Judicature at Allahabad

Bholu Kumar Jaiswal v. State of U.P. and Another

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Bholu Kumar Jaiswal v. State of U.P. and Another

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