Prayagraj: In a significant judgment providing relief in matrimonial disputes, the Allahabad High Court has ruled that a husband cannot be arrested for failure to pay maintenance (alimony) and that family courts have no legal authority to issue arrest warrants for recovery of maintenance dues.
The court held that such arrests violate the fundamental right to personal liberty under Article 21 of the Constitution, emphasizing that no individual’s liberty can be curtailed without due process of law.
Arrest Warrants for Maintenance Declared Illegal
Justice Rajiv Lochan Shukla, while allowing a petition challenging the legality of maintenance recovery proceedings, observed that maintenance can only be recovered by following procedures prescribed under law, including provisions of the Criminal Procedure Code (CrPC), Civil Procedure Code (CPC), and the Family Courts Act.
The High Court categorically stated that no statute provides for the issuance of arrest warrants for recovery of maintenance and that family courts exceed their jurisdiction by ordering arrests in such cases.
Maintenance Liability Is Not a Criminal Offence
The court made it clear that failure to pay maintenance, though a legal obligation, does not amount to a criminal offence.
“A person liable to pay maintenance cannot be treated as a criminal. Courts, in their excessive zeal to enforce maintenance orders, cannot trample upon an individual’s dignity and personal freedom, even if the default appears intentional,” the court observed.
Supreme Court Precedent Reaffirmed
Referring to the Supreme Court’s landmark judgment in Rajnesh vs Neha, the High Court reiterated that maintenance recovery must strictly adhere to statutory mechanisms, such as attachment of salary or property, and not through coercive arrests.
Routine Issuance of Warrants Termed ‘Inhuman’
The court expressed strong disapproval of the routine practice adopted by family courts in Uttar Pradesh of issuing arrest warrants for maintenance recovery, terming it illegal, unconstitutional and inhuman.
It noted that producing a person in custody for non-payment of maintenance humiliates the individual and undermines human dignity, as if the person were accused of a criminal offence.
Case Background
The ruling came in a petition filed by Mohammad Shahzad, challenging maintenance recovery proceedings initiated by Shazia Khan in the Family Court, Aligarh.
The family court had earlier directed Shahzad to pay ₹10,000 per month as maintenance to his wife and ₹5,000 per month for the child under Section 125 CrPC. Upon alleged non-compliance, the court issued an arrest warrant on an application under Section 128 CrPC to recover the arrears.
Shahzad challenged the warrant by invoking the inherent powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
High Court Order
Allowing the petition, the High Court:
- Quashed the arrest warrant dated September 25, 2025, issued by the Additional Family Court, Aligarh
- Directed the family court to adopt lawful recovery measures, including salary attachment or civil recovery proceedings under the CPC
- Reiterated that arrest cannot be used as a tool for maintenance recovery
Clear Legal Position
The court conclusively held that while paying maintenance is a statutory duty of the husband, non-payment does not justify arrest, and coercive measures violating personal liberty are impermissible.
The case pertains to Banna Devi police station area in Aligarh district.
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