Simultaneous Issuance Of Recovery & Arrest Warrants Not Permitted U/S 125(3) Cr.P.C.: Allahabad High Court
The plea was filed under Section 528 BNSS, challenging the Family Court's order.
The Allahabad High Court has held that arrest warrants cannot be issued for recovery of arrears of maintenance under Section 125(3) Cr.P.C.
The plea was filed under Section 528 BNSS, challenging the Family Court's order.
A Bench of Justice Rajiv Lochan Shukla held, "Section 125(3) Cr.P.C. clearly indicates that efforts are to be made, first, to recover the arrears of maintenance/enforce the order of maintenance in the manner provided for levying fines, and if the warrant is not executed or is partially executed, the Court may sentence the person, directed to pay the maintenance amount, to imprisonment for the whole or any part of each month's allowance for maintenance, interim maintenance, or expenses of proceedings, as the case may be, which remain unpaid after the execution of the recovery warrant. Thus, the simultaneous issuance of warrants for recovery and arrest is not contemplated under the Code of Criminal Procedure. Even the directions given by the Supreme Court do not contemplate any such practice."
Advocate Kuldeep Kumar appeared for the Applicant.
The Court emphasized that forestalling the liberty of an individual by issuing arrest warrants for maintenance recovery is not contemplated under the statutory scheme. The Court reiterates the directions of the Supreme Court in Rajnesh vs. Neha & Another, 2021 which mandates that orders of maintenance may be enforced under Section 28-A of the Hindu Marriage Act, Section 20(6) of the DV Act, Section 128 Cr.P.C., or as a money decree under the Civil Procedure Code.
The Court observed that the procedure under Section 125(3) Cr.P.C. requires recovery of arrears “in the manner provided for levying fines” and imprisonment can only follow after failure to execute the recovery warrant, and not simultaneously with its issuance. The Court noted, "His personal dignity and liberty cannot be trampled with by the Courts in their excessive enthusiasm in enforcement of orders of maintenance, even if they come to a finding that there has been a deliberate non-payment of arrears of maintenance pursuant to an order of Court."
The High Court clarified that enforcement of maintenance orders must strictly follow statutory provisions and directions laid down by the Supreme Court, including the procedural safeguards under the Family Courts Act, 1984, the Code of Criminal Procedure, 1973, and the U.P. Family Courts Rules, 2006.
The matter has been remitted back to the Family Court to proceed with recovery of maintenance in accordance with law.
Cause Title: Mohammad Shahzad v. State of U.P. & Ors. [2026:AHC:10500]