# Lav Kumar v. State of U.P. & Anr

- **Citation:** (2022) 7 ILRA 498
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-13
- **Case number:** Application U/S 482 No. 20081 of 2021
- **Bench:** Syed Aftab Huasain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lav-kumar-v-state-of-u-p-anr-48903
- **Pages:** 3

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 &
128-challenge
to
-recovery
warrant- for recovery of arrears
the
application
is
maintainable
only to the extent of one year
prior to the filing of application -
the maintenance holder cannot be
permitted
to
accumulate
the
maintenance for a period more
than 12 months and as such no
application
for
execution
of
maintenance
order
can
be
entertained for a period exceeding
12 months immediately preceding
the
date
of
application-no
recovery warrant could have been
issued against the applicant for
recovery of arrears of maintenance
which has become time barred-the
impugned order is not sustainable
and is liable to be set aside. (Par a
1 to 8)

The application is allowed. (E-6)

## Text

498 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)07ILR A498
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2022

BEFORE

THE HON'BLE SYED AFTAB HUASAIN RIZVI, J.

Application U/S 482 No. 20081 of 2021

Lav Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Mohammad Sakir, Sri Pankaj Kumar
Gupta

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 &
128-challenge
to
-recovery
warrant- for recovery of arrears
the
application
is
maintainable
only to the extent of one year
prior to the filing of application -
the maintenance holder cannot be
permitted
to
accumulate
the
maintenance for a period more
than 12 months and as such no
application
for
execution
of
maintenance
order
can
be
entertained for a period exceeding
12 months immediately preceding
the
date
of
application-no
recovery warrant could have been
issued against the applicant for
recovery of arrears of maintenance
which has become time barred-the
impugned order is not sustainable
and is liable to be set aside. (Par a
1 to 8)

The application is allowed. (E-6)
(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard learned counsel for the
applicant, learned AGA for the State and
perused the material on record.

2. This criminal misc. application U/s
482 Cr.P.C. is filed to quash the impugned
order dated 05.08.2021 passed by Principal
Judge Family Court, Bijnor in case no.868
of 2019 (Sudha Devi vs. Lav Kumar) under
Section 128 Cr.P.C. By the impugned
order, the learned court below has allowed
the application U/s 128 Cr.P.C. filed by
opposite party no.2 for recovery of arrears
of
Rs.36,000/-
from
06.01.2011
to
06.01.2013
and
consequently
issued
recovery warrant.

3. The opposite party no.2 instituted a
proceeding under Section 125 Cr.P.C. for
maintenance
which
was
allowed
on
19.01.2000 and Rs. 500/- per month
maintenance allowance was granted in
favour of the opposite party no.2. Later on
she moved an application No.71 of 2005,
under Section 127 Cr.P.C. for enhancement
of maintenance and this application was
allowed on 25.11.2009 and maintenance
was enhanced from Rs. 500/- to Rs. 3000/-
per month. Thereafter the opposite party
no.2 moved an application no.14 of 2013
under Section 128 Cr.P.C. for recovery of
arrears of maintenance from 06.01.2011 to
06.01.2013 i.e. 24 months @ Rs.3000/- per
month total amounting to Rs. 72,000/- on
12.02.2013.
Learned
Magistrate
after
considering
the
entire
evidence
and
material on record allowed this application
in part for recovery of entire one year
maintenance allowance of Rs.36,000/- and
refused to recover the remaining 12 months
arrears of Rs.36,000/- observing that it has
become time barred. The opposite party
no.2 again moved an application No.406 of
2014 U/s 128 Cr.P.C. for recovery of
arrears of maintenance allowance from
7 All. Lav Kumar Vs. State of U.P. & Anr.
499
06.01.2012 to 06.01.2013 i.e.12 months of
Rs.36,000/- before the family court, Bijnor.
This application was rejected by the
Principal Judge, Family Court on the
ground that earlier this point has been
decided and no fresh order is required.
Thereafter, the opposite party no.2 moved
another application No.868 of 2019 on
25.10.2019 under Section 128 Cr.P.C. for
recovery of balance amount of arrears of
maintenance allowance from 06.01.2011 to
06.01.2013 of Rs. 36,000/- for 12 months.
It is alleged in that application that earlier
an application was moved for recovery of
arrears from 06.01.2011 to 06.01.2013 for
total amounting of Rs.72,000/- but the
learned trial court has awarded only one
years arrears maintenance amounting to
Rs.36,000/-. Hence remaining arrears of
maintenance for one year amounting to Rs.
36,000/- is still due from the applicant. The
learned Principal Judge, Family Court by
the impugned order has allowed the
aforesaid application and has issued the
recovery warrant for recovery of arrears of
Rs.36,000/- against the applicant.

4. The contentions of learned counsel
for the applicant are that the impugned
order
is
apparently
perverse,
illegal,
arbitrary and bad in the eye of law. The
court concerned has earlier refused to
recover
the
two
years
arrears
of
maintenance allowance observing that only
one year arrears can be recovered and has
refused to recover the arrears from
06.01.2011 to 06.01.2012. Recovery of
Rs.36,000/- arrears from 06.01.2012 to
06.01.2013 has already been made. The
opposite
party
no.2
moved
another
application for recovery of remaining
amount of Rs. 36,000/- which was rejected
on 11.12.2013. But the learned Principal
Judge, Family Court on the subsequent
application has reviewed the previous order
and in illegal manner has allowed the
application.

5. The learned AGA not disputed the
aforesaid facts.

6. It is admitted fact that monthly
maintenance of Rs.3000/- was granted in
favour
of
opposite
party
no.2
on
25.11.2009. She moved an application for
recovery of arrears from 06.01.2011 to
06.01.2013 for 24 months total amounting
to
Rs.72,000/-
on
12.02.2013.
This
application was partly allowed for recovery
of only one year arrears from 06.01.2012 to
06.01.2013 and it was also held that under
provisions of law as the application has
been moved on 12.02.2013 only one year
of maintenance prior to the date of
application can be recovered and the court
issued recovery warrant for recovery of
maintenance
from
06.01.2012
to
06.01.2013 of Rs.36,000/- only. The
second application moved by the opposite
party no.2 was also rejected on the
aforesaid ground. The opposite party no.2
thereafter moved a third application which
has been allowed by the Principal Judge,
Family Court.

Section 125 (3) Cr.P.C. provides
as follows:

"If any person so ordered fails
without sufficient cause to comply with the
order, any such Magistrate may, for every
breach of the order, issue a warrant for
levying the amount due in the manner
provided for levying fines, and may
sentence such person, for the whole or any
part of each month's (allowance for the
maintenance or the interim maintenance
and expenses of proceeding, as the case
may be), remaining unpaid after the
execution of the warrant, to imprisonment
500 INDIAN LAW REPORTS ALLAHABAD SERIES
for a term which may extend to one month
or until payment if sooner made:

Provided that no warrant shall be
issued for the recovery of any amount due
under this section unless application be
made to the court to levy such amount
within a period of one year from the date
on which it became due."

7. From the aforesaid provisions, it is
clear that for recovery of arrears the
application is maintainable only to the
extent of one year prior to the filing of
application. The maintenance holder cannot
be
permitted
to
accumulate
the
maintenance for a period more than 12
months and as such no application for
execution of maintenance order can be
entertained for a period exceeding 12
months immediately preceding the date of
application.

8. Considering the aforesaid provision
of law, the learned Magistrate vide his
order dated 12.02.2015 has allowed the
application in part only for recovery of
arrears of maintenance for one year i.e.
from
06.01.2012
to
06.01.2013
and
Rs.36,000/-
was
recovered
and
the
application was dismissed for recovery of
arrears of maintenance from 06.01.2011 to
06.01.2012. The learned Principal Judge
Family Court has failed to consider the
legal provisions in this respect and has
misinterpreted the previous orders and the
law. The arrears of maintenance from
06.01.2011 to 06.01.2012 has become
irrecoverable. So the impugned order
suffers
from
manifest
illegality,
no
recovery warrant could have been issued
against the applicant for recovery of arrears
of maintenance which has become time
barred. The impugned order is not
sustainable and is liable to be set aside.

9. Accordingly, the application is
hereby allowed and the impugned order
dated 05.08.2021 passed by Principal
Judge, Family Court in case no.868 of 2019
(Sudha Devi vs. Law Kumar) under Section
128 Cr.P.C. is hereby quashed.
----------
(2022)07ILR A500
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.07.2022

BEFORE

THE HON'BLE SYED AFTAB HUASAIN RIZVI, J.

Application U/S 482 No. 29733 of 2021

Anwar Ali ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Mohd. Raghib Ali, Sri Saghir Ahmad
(Senior Adv.)

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code,1860-Sections 302, 397/34rejection of default bail application-The
Chief Judicial Magistrate awaited for
second report submitted by APP and after
receiving thereof, heard and rejected the
default bail application, whereas the Chief
Judicial Magistrate ought to heard and
decide the default bail application on the
basis of first report-The Chief Judicial
Magistrate only in order to anyhow
extinguish statutory/ fundamental right of
the applicant for default bail has awaited
for a second report, whereas the applicant
had already availed the remedy and made
out a case of default bail prior to the
submission of the charge-sheet-Thus, the
right of default bail of the applicant
cannot be extinguished but even though
the
CJM
denied
the
applicant,
his