Simultaneous Recovery & Arrest Warrants Illegal

Source: Allahabad High Court 

Why in News? 

Justice Rajiv Lochan Shukla of the Allahabad High Court in the case of Mohammad Shahzad v. State of U.P. And 2 Others (2026) set aside an order of the Additional Principal Judge, Family Court, Aligarh, wherein recovery and arrest warrants were issued simultaneously against the petitioner to recover maintenance arrears, declaring this routine practice as illegal and inhumane. 

What was the Background of Mohammad Shahzad v. State of U.P. And 2 Others (2026) Case? 

• The petition was filed by Mohammad Shahzad under Section 528 BNSS, challenging the Family Court's order. 
• The Additional Principal Judge, Family Court, Aligarh had issued both recovery and arrest warrants simultaneously against the petitioner to recover arrears of maintenance. 
• The petitioner's counsel argued that while maintenance orders must be enforced, the procedure cannot contravene specific statutory provisions as per the Supreme Court's decision in Rajnesh v. Neha & Another (2021). 
• The Additional Government Advocate (AGA) appearing for the State admitted that no arrest warrants can be issued for recovery of arrears of maintenance without first following the procedure prescribed under Sections 125(3) and 128 CrPC. 
• The AGA, however, submitted that the applicant had previously defaulted on payment instalments directed by the High Court. 
• The Court noted that it had come across numerous cases where Family Courts issued arrest warrants along with recovery warrants, and in some cases even non-bailable warrants, treating defaulters as accused persons. 

What were the Court's Observations? 

• The bench observed that a person liable to pay maintenance is not to be treated as a person who has committed a crime, and the dignity and liberty of such an individual cannot be trampled upon by the Courts to enforce a maintenance order. 
• Justice Shukla referred to Section 125(3) and Section 421 of the CrPC to note that recovery of arrears of maintenance can be made in the manner provided for levying fines. 
• The Court explained that under Section 421 CrPC, a warrant for levy of a fine is executed by attachment and sale of movable property or by authorizing the Collector to realize the amount as arrears of land revenue. 
• The Court emphasized that the proviso to Section 421 expressly provides that "no such warrant shall be executed by the arrest or detention in prison of the offender." 
• The bench noted that only upon failure to deposit the amount or arrears remaining after execution of the warrant can imprisonment be awarded. 
• The Court stated that Section 125(3) CrPC clearly indicates that efforts must first be made to recover the arrears of maintenance in the manner provided for levying fines, and only if the warrant is not executed or is partially executed may the Court sentence the person to imprisonment. 
• The Court remarked that "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." 
• The Court also addressed the argument that maintenance orders should be executed strictly as money decrees under the CPC, specifically Sections 51, 55, 58, and 60 read with Order 21. 
• The Court clarified that while the Family Courts Act, 1984, allows Family Courts to lay down their own procedure, Section 18(2) of the Act clearly provides that an order passed under Chapter IX of the CrPC (which includes Section 125) shall be executed in the manner prescribed by the CrPC. 
• The Court held that the provisions of the CPC apply only to salaries and that the entire chapter on execution of decrees cannot be made applicable, as the CrPC is exhaustive in the enforcement of maintenance orders. 
• The Court directed that the practice of issuing arrest warrants along with recovery warrants must stop. 
• Consequently, the application was allowed, the impugned order was set aside, and the matter was remitted back to the Additional Principal Judge, Family Court, Court No. 2, Aligarh, to decide the application strictly in accordance with statutory provisions. 

What is Warrant & its Types? 

About:  

A warrant is a written instrument issued by the Judge or Magistrate on behalf of the state which authorizes the arrest and detention of an individual or the search and seizure of an individual's property.

Types of Warrant:

Arrest Warrant: 

Search Warrant:  

Attachment Warrant: 

Commitment Warrant: 

Maintenance Warrant: 

Release / Appellate Warrant: 

Fine / Compensation Recovery Warrant: