Himachal Pradesh High Court
Reserved On: 30.06.2025 vs Sonali Gupta on 8 July, 2025
2025:HHC:21736 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 582 of 2025 Reserved on: 30.06.2025 .
Date of Decision: 08.07.2025
Rajan Arya @ Kumar Rajanarya .... Petitioner
Versus
Sonali Gupta .... Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes.
For the Petitioner : Servedaman Rathore, Advocate.
For Respondent : Nemo
Rakesh Kainthla, Judge
The petitioner has filed the present petition for quashing of order dated 11.04.2025 passed by learned Judicial Magistrate First Class, Nanah, District Sirmour at Nahan H.P. (learend Trial Court) vide which application for attachment of salary filed by the respondent was allowed and a direction was ____________________ Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 08/07/2025 21:27:49 :::CIS 22025:HHC:21736 issued to the petitioner's Drawing and Disbursing officer (DDO) to attach the 1/3rd salary of the petitioner and remit it to the Court.
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2. Briefly stated, the facts giving rise to the present petition are that the petitioner is the husband of the respondent.
The respondent filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act), which was allowed on 14.10.2019, and an amount of ₹15,000/- per month was awarded to her as maintenance from the date of the order. The maintenance amount was not paid; therefore, the respondent filed an execution application on 22.08.2023, asserting that ₹2,25,000/-
was due/recoverable. Subsequently, another application was filed to attach the salary of the petitioner for recovery of ₹436,500/- due till the date of the application. Learned Trial Court passed an order dated 11.04.2025 that the petitioner did not appear before the Court; therefore, DDO was directed to attach the 1/3 rd salary of the petitioner and remit same to the Court.
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3. Being aggrieved from the order passed by the Court, the present petition has been filed asserting that the respondent .
registered an F.I.R. against the petitioner on 27.05.2024 for the commission of offences punishable under Section 498-A, 323, 504, and 377 of Indian Penal Code (IPC) at Police Station Sarnath, District Varanasi (Commissionerate Varanasi). The petitioner filed a petition under Section 482 of the Cr.PC before the High Court of Allahabad for quashing of the said F.I.R. and criminal proceedings arising out of it. The matter was referred to the Learned Mediator to resolve the dispute amicably. Learned Trial Court failed to take notice of the fact that mediation proceedings were pending. The petitioner paid a sum of ₹1,00,000/- to the respondent on 14.04.2025. The parties decided to reunite and reside together on 08.05.2025. It was agreed that the proceedings pending between them would be kept in abeyance. The petitioner is taking care of his wife, and the parties have entered into a settlement. The respondent is residing with her children in a house provided by the ::: Downloaded on - 08/07/2025 21:27:49 :::CIS 4 2025:HHC:21736 petitioner with her children. The continuation of the proceedings despite the undertaking between the parties would be oppressive;
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therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
4. Mr.Servedaman Rathore, learned counsel for the petitioner, submitted that the parties had settled their disputes on 08.05.2025. They agreed to keep the proceedings between them in abeyance. The execution of the order would put the settlement in jeopardy. Therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
5. I have given considerable thought to his submissions made at the bar and have gone through the records carefully.
6 It is undisputed that an order of maintenance at the rate of ₹15,000/- per month was passed by the Court on 14.10.2019. The petitioner mentioned in the petition that an amount of ₹1,00,000/-
was paid to the respondent through a cheque, which was cleared on ::: Downloaded on - 08/07/2025 21:27:49 :::CIS 5 2025:HHC:21736 14.04.2025. Therefore, it is apparent that the maintenance awarded by the Court has not been paid to the respondent.
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7. Section 28 of the D.V. Act provides that proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 of the D.V.Act shall be governed by the Code of Criminal Procedure (CrPC). The petition was filed under Section 12 of the D.V. Act, and the maintenance order was passed under Section 20 of the D.V.Act. Therefore, the same has to be executed as per the provisions of Cr.P.C.
8. Section 125(3) of Cr.P.C. authorises the Magistrate to issue a warrant for recovering the amount due in the manner provided for levying fines. Section 421 of the Cr.P.C. provides for the recovery of the amount payable as a fine by issuing a warrant.
Therefore, the order passed by the learned Magistrate for issuing a warrant cannot be faulted.
9. It was laid down by the Madras High Court in Shanmugham v. Andal, 1989 SCC OnLine Mad 514,that the salary falls within the definition of movable property and the learned ::: Downloaded on - 08/07/2025 21:27:49 :::CIS 6 2025:HHC:21736 Magistrate can issue a warrant for attachment of salary. It was observed:
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"8. Before we enter into this controversy, there can be no difficulty in holding that the salary would be property within the meaning of S. 421, Crl. P.C. Reference could be made to R.K. Dalmia v. The Delhi Administration, (AIR 1962 SC 1821), Marchersha Ardeshir Deiverwala v. Ismail Ibrahim Patel, (AIR 1936 Bom 167) and In re Yerasuri Lakshminarayana Murthy, (1986 Cri LJ 1846) on this aspect of the case.
9. The Supreme Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal, (1978) 4 SCC 70: AIR 1978 SC 1807), speaking through V.R. Krishna Aiyar, J., has observed that "S. 125, Crl. P.C. is a measure of social justice and was specially enacted to protect women and children, and falls within the Constitutional sweep of Art. 15(3) reinforced by Art. 39. There is no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance, so viewed, it is possible to be selective in packing out that interpretation out of two alternatives which advance the cause--the cause of the derelicts".
10. Keeping this observation in view, the scope of attachment of salary in the execution of a maintenance order will have to be considered. In Baldevi v. Ramnath, (1978) 4 SCC 70: AIR 1978 SC 1807) a Division Bench of the Rajasthan High Court held that movable property in Cl. (a) of S. 386(1), Crl. P.C., (new S. 421(1)(a), Crl. P.C.), refers to ::: Downloaded on - 08/07/2025 21:27:49 :::CIS 7 2025:HHC:21736 tangible movable property which can be seized, and it must belong to the offender. If it were movable property of other description, the remedy was, under Cl.(b), by civil process.
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There was a difference in the meaning of the word 'movable property' in Cls.(a) and (b), therefore, the wife cannot ask for attachment of the future salary of her husband as and when it becomes due, for it was neither tangible corporeal property nor belonging to the husband, who had not yet earned the future salary. The same view was taken by the Rangoon High Court in Maugh Soe Hlaing v. Ma Thein Khin, (AIR 1934 Rang 82) wherein it has been observed that the expression 'movable property' as used in S. 386 of the old Code did not include salary not yet drawn by a salary earner and, therefore, an order directing issue of a warrant of attachment of person's salary was irregular. The Calcutta High Court in Rajendranath Ghose v. Brojabala Ghose, (AIR 1956 Cal 135) held that the proper procedure for enforcement of a maintenance order where the salary of the defaulting husband had to be attached, the provisions of S. 386(1)(b) of the old Code had to be followed. In that view, it held that an order directing the manager of a company in which the husband was employed to attach a definite sum of money out of the husband's salary and directing its payment to the wife was illegal. J.C.'s Court of Goa, Daman and Diu in Ali Khan v. Smt. Hajrambi, (1981 Cri LJ 682) followed the view of the Rajasthan High Court and held that issuance of a warrant of attachment of future salary for the recovery of arrears of maintenance was not permissible and the proper procedure was to seek recourse to S. 421(1)(b) of the Code. A similar view was expressed in Sm. Renuka Paul v. Dhirendry Nath Paul, (1974 Cri LJ 171), by the Calcutta High Court. In the State of Mysore v. Duraiswamy, (1964 Mad LJ (Cri) 699), the ::: Downloaded on - 08/07/2025 21:27:49 :::CIS 8 2025:HHC:21736 Karnataka High Court held that attachment of salary not accrued to a Government servant, in enforcement of an order of maintenance against him, was illegal and cannot be .
supported. This pronouncement refers to Rajendranath Ghose v. Brojabala Ghose (AIR 1956 Cal 135) and Baldevi v. Ramnath (AIR 1955 Raj 61). However, the present view of the Karnataka High Court is apparently different.
11. Now, turning to the view that the salary could be attached, reference can be made to the decision of the Andhra Pradesh High Court in Ahmed Basha v. wajid Unnisa, (1983 Cri LJ 479) wherein it has been held that recovery of arrears of maintenance by issue of warrant for attachment of salary was permissible under S. 421, Cr.P.C. There is a definite observation, "the view that future salary of the husband cannot be attached because the future salary is not available for seizure and did not belong to the husband since he cannot be said to have earned his future salary is unsustainable. When a moneylender or a Bank has got the right under S. 60, C.P.C., 1908, to attach the salary of an official to the extent indicated therein in execution of a money decree or maintenance decree it is preposterous to say that a wife cannot seek for attachment of her husband's salary for recovering the arrears of maintenance granted by the Magistrate under S. 125(3) of the Code". The same view was reiterated by the Andhra Pradesh High Court in In re Yerasuri Lakshminarayana Murthy, (1986 Cri LJ 1846) by holding that S. 125 is designed to provide maintenance to the wife, who is unable to support herself, and, therefore, it was imperative on the part of the person against whom the order for payment is passed to comply with it. 'Movable Property' must be given a wide interpretation, and 'salary' cannot be ::: Downloaded on - 08/07/2025 21:27:49 :::CIS 9 2025:HHC:21736 excluded from this category. The Karnataka High Court in K.V. Rudraiah v. Smt. B.S. Mudda Gangamma, (1985 Cri LJ
707) has held that the contention that under S. 421(1)(a), Crl.
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P.C. only tangible and corporeal property could be attached by issue of a warrant, and that salary payable in future, not being such property, could not be attached and had to be rejected. It was further observed that salary was also movable property, and the warrant would become effective on the salary becoming due and payable. This decision has taken note of the Division Bench dicta of this Court in Pichu Vadhiar's case reported in Pichu Vadhiyar v. The Secretary of State for India in Council, (18 Cri LJ 426). At this stage, it will be useful to refer to the observation of the Division Bench of this Court in Pichu Vadhiar v. The Secretary of State for India in Council, (18 Cri LJ 426) wherein, while interpreting S. 386 of the Code of Criminal Procedure, the following observations have been made:
This position receives support from S. 60 of the Code of Civil Procedure, which includes money among properties which can be attached.................
I do not understand the provision under S. 386 Cr.P.C. as compelling the distrainor to bring the movable property to sale. There may be cases in which the object can be gained by distress alone. There may also be cases in which the object can be obtained only by distress as well as by sale.............
But, apart from it, if there is tangible property, which is capable of being physically seized, I fail to see how S. 386, Crl. P.C. can be evaded by stating that as the distressed property is not ordinarily liable to be sold, there cannot be distraint".::: Downloaded on - 08/07/2025 21:27:49 :::CIS 10
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12. Therefore, it is obvious that by recourse to S. 421, Cr.P.C. there need not be always distraint and sale as sought to be put forth by the learned counsel for the petitioner for, .
according to him, if there cannot be a sale of the salary there cannot be distraint of it, since distraint alone without a sale will also be feasible under the said provision. In this context, reference to R. 298(2-A), Crl. P.C. may be useful, for, attachment or sale of the articles referred to have been contemplated. Further, S. 83(3), Crl. P.C. not only permits seizure but also permits an order in writing prohibiting the delivery of property to any person.
13. On the totality of the legal provisions taken in conjunction with the social purpose behind S. 125, Crl. P.C., a liberal interpretation will have to be given, and naturally, in my opinion, the view of the Andhra Pradesh and the Karnataka High Court in Ahmed Pasha v. Wajid Unnisa, (1983 Cri LJ 479), In re Yerasuri Lakshminarayana Murthy, (1986 Cri LJ 1846), and K.V. Rudraiah v. Smt. B.S. Mudda Gangamma, (1985 Cri LJ 707) commend acceptance with respect. A wife cannot be placed in a position worse than thatof a moneylender. Logically, therefore, the views of the Calcutta, Rajasthan and Goa High Courts have to be dissented in the light of the approach I have made, keeping in view the social commitment of this legislation.
14. The reference made to the forms provided under the Schedule may not assume importance since Form No. 19, which is applicable to a warrant to enforce under S. 125, Cr.P.C., fits in with Form No. 43 contemplated under S. 421, Crl. P.C. I therefore hold that the salary, inclusive of the future salary of the husband, can be attached in the manner ::: Downloaded on - 08/07/2025 21:27:49 :::CIS 11 2025:HHC:21736 provided under S. 421(1)(a), Crl. P.C. and the 'salary' will fall within the concept of 'movable property'.
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10. A similar view was taken in Hyderali v. MusttRagia Begum, 1999 SCC OnLine Gau 147: (2000) 2 Gau LR 471,wherein it was observed at page 472:
"5. ...The next contention of the learned counsel for the petitioner is that the petitioner is a government servant, and the issuance of a warrant of attachment of salary for the recovery of arrears of maintenance is not permissible under the law. In support of his submission, reference has been made to a decision in the case of Ali Khan v. Smt. Hazambi reported in 1981 CR.L.J. 682. There is no specific bar for attachment of salary u/s 125(3) Cr. P.C. The provision u/s 125 Cr. P.C. are in the nature of a social welfare measure, such as speedy relief to the needy, i.e., deserted wife, minor child, as well as parents, etc. In the case of Yerasuri Lakshminarayana Murty, 1986 Criminal Law Journal page 1846, the Hon'ble Andhra Pradesh High Court held as follows:
"S. 125 is designed to provide maintenance to the wife who is unable to support herself. Therefore, it is imperative on the part of the person against whom the decree for payment is passed to comply with the decree. S. 125(3) provides for the enforcement of the decree by attachment of any movable property. Movable property must be given a wide interpretation, and salary cannot be excluded from its category. Therefore, the salary of the husband can be attached under S. 125(3) for payment of maintenance to the wife."::: Downloaded on - 08/07/2025 21:27:49 :::CIS 12
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11. It was held in Mani v. Jayakumari, 1998 SCC OnLine Mad 411: (1998) 2 MWN (Cri) 234: 1998 Cri LJ 3708: (1999) 1 HLR 105:
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(1998) 2 LW (Cri) 498: (1998) 2 DMC 533that future salary can be attached for the payment of past maintenance. It was observed at page 242:
"33. It is also evident that S. 421 (1) (a) Cr.P.C. does not indicate that tangible and corporeal property alone could be attached by issue of a warrant. It is also quite clear from the above discussions that it cannot be disputed that the salary as such is a movable property, and the Criminal Courts are empowered to attach any tangible movable property.
34. The contention that the future salary does not belong to the husband because he cannot be said to have earned his future salary, also is not a legally sustainable because some of the provisions in the Code of Civil Procedure, do recognise the existence of such a property and provide for a procedure for the attachment of the future salary.
35. It is to be noted in this connection that the said provisions, in fact, do not speak of future salary at all, though the aforesaid provisions speak of the attachment of the salary accruing from time to time to the person whose assets are to be seized. Therefore, the expression 'attachment and sale' used in S. 421 (1) (a) of the Code of Criminal Procedure does not necessarily mean tangible corporeal property; on the other hand, it includes 'debt' as well.::: Downloaded on - 08/07/2025 21:27:49 :::CIS 13
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36. If a person, from whom the fine amount is to be recovered in a criminal case, in the manner prescribed for the levy of fines, has no tangible movable property, but has .
only some assets of intangible movable property, it cannot definitely be said that the State shall not be entitled to recover the amount of fine, by proceeding against the aforesaid intangible movable assets. Therefore, under Chapter IX of the Code of Criminal Procedure, it would be reasonable and legal to hold that the intangible movable assets of such a person would also be liable to be attached for realising the amount of fine.
37. Hence, in my view, future salary can be attached for the past arrears under S. 421 (1) (a) Cr.P.C. The second point is answered accordingly."
12. Hence, the issuance of a warrant of attachment of salary is not bad.
13. It was submitted that no notice was served upon the petitioner before the attachment, and the order is bad. This submission is not acceptable. It was laid down in Praveen Sharma v.
Rashmi Sharma, 2012 SCC OnLine Utt 1493, that failure to serve notice upon the husband will not invalidate the order, especially when he had contested the proceedings in the main case. It was observed:
::: Downloaded on - 08/07/2025 21:27:49 :::CIS 142025:HHC:21736 "4. Learned counsel for the petitioner (husband) argued before this Court that no notice was issued to the present petitioner before issuing the warrant of recovery and .
attachment order. Reliance is placed on the judgment and order passed by the Patna High Court in CRWJC No. 721 of 2011, Laljee Yadav v. State of Bihar, in which the Patna High Court has opined that notices should have been issued in the recovery proceedings before the warrant of recovery is issued.
5. The facts of the above-mentioned case of the Patna High Court are different to the present case, as in the said case, the warrant of arrest was issued for non-payment of outstanding dues. Not only this, in the said case, the petitioner was not aware of the outstanding dues. But in the present case, the present petitioner has contested the application under Section 125 of Cr.P.C., and he was well aware of the liability and outstanding dues. Apart from this, there is no order of arrest of the accused before directing him to make payment of the outstanding/arrears of the amount of maintenance.
6. Powers under Section 482 of Cr.P.C. are required to be exercised either to give effect to any order passed under the Code or to prevent abuse of process of any law or otherwise to secure the ends of justice. In the present case, if the prayer made in the petition is allowed, it comes under none of the three categories. If the impugned order is interfered with, it would amount to helping the person, who is knowingly not complying with the order passed by the trial court, which has attained finality."
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14. It was submitted that the parties entered into a settlement and agreed to keep the cases filed by them against each .
other in abeyance. This settlement is stated to have taken place on 08.05.2025. No certified copy of the settlement was filed, and only a photocopy was filed, the authenticity of which is not established.
Hence, it would be improper to act upon it.
15. The learned Trial Court has passed the order on 11.04.2025 before the settlement between the parties; therefore, it is open for the petitioner to approach the learned Magistrate and apprise him/her about the settlement effected between the parties.
The said course would have afforded an opportunity to the respondent to inform the Court about the settlement. However, the petitioner rushed to this Court for the quashing of the order passed by the learned Trial Court. It is trite to say that the inherent jurisdiction is to be exercised sparingly to avoid the abuse of the process of the Court. This jurisdiction should not be exercised when an alternative remedy is available. It was held by the Hon'ble ::: Downloaded on - 08/07/2025 21:27:49 :::CIS 16 2025:HHC:21736 Supreme Court in Hamida v. Rashid(2008) 1 SCC 474that the inherent power under Section 482 of Cr.P.C. is to be exercised .
sparingly and should not be exercised when an alternative remedy is available. It was observed:
"7. It is a well-established principle that inherent power conferred on the High Courts under Section 482 CrPC has to be exercised sparingly with circumspection and in rare cases, and that too to correct patent illegalities or when some miscarriage of justice is done. The content and scope of power under Section 482 CrPC were examined in considerable detail in Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551: 1978 SCC (Cri) 10: AIR 1978 SC 47], and it was held as under : (SCC p. 555, para 8) The following principles may be stated in relation to the exercise of the inherent power of the High Court:
(1) that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) that it should be exercised very sparingly to prevent abuse of the process of any court or otherwise to secure the ends of justice;
(3) that it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
8. In State v. Navjot Sandhu [(2003) 6 SCC 641: 2003 SCC (Cri) 1545], after a review of a large number of earlier decisions, it was held as under: (SCC p. 657, para 29) ::: Downloaded on - 08/07/2025 21:27:49 :::CIS 17 2025:HHC:21736 "29. ... The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing .
the ends of justice. The inherent power must be exercised very sparingly, as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out hereinabove fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."
9. In Arun Shankar Shukla v. State of U.P. [(1999) 6 SCC 146:
1999 SCC (Cri) 1076] the High Court had entertained a petition under Section 482 CrPC after an order of conviction had been passed by the Sessions Judge and before the sentence had been awarded and further proceedings in the case had been stayed. In appeal, this Court set aside the order of the High Court after reiterating the principle that it is well settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. It was further observed that the High Court overlooked the procedural law which empowered the convicted accused to prefer a statutory appeal against conviction of the offence and intervened at an uncalled for ::: Downloaded on - 08/07/2025 21:27:49 :::CIS 18 2025:HHC:21736 stage and soft-pedalled the course of justice at a very crucial stage of the trial. The order of the High Court was accordingly set aside on the ground that a petition under .
Section 482 CrPC could not have been entertained as the accused had an alternative remedy of an appeal as provided in the Code. It is not necessary to burden this judgment with other decisions of this Court, as the consistent view throughout has been that a petition under Section 482 CrPC cannot be entertained if there is any other specific provision in the Code of Criminal Procedure for redress of the grievance of the aggrieved party.
10. In the case in hand, the respondents-accused could apply for bail afresh after the offence had been converted into one under Section 304 IPC. They deliberately did not do so and filed a petition under Section 482 CrPC in order to circumvent the procedure whereunder they would have been required to surrender, as the bail application could be entertained and heard only if the accused were in custody. It is important to note that no order adverse to the respondents-accused had been passed by any court, nor was there any miscarriage of justice or any illegality. In such circumstances, the High Court committed a manifest error of law in entertaining a petition under Section 482 CrPC and issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence under Section 304 IPC. The effect of the order passed by the High Court is that the accused after getting bail in an offence under Sections 324, 352 and 506 IPC on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries and the case had been converted into one under Section 304 IPC without any court examining the case on merits, as it stood after ::: Downloaded on - 08/07/2025 21:27:49 :::CIS 19 2025:HHC:21736 conversion of the offence. The procedure laid down for the grant of bail under Section 439 CrPC, though available to the respondents-accused, having not been availed of, the .
exercise of power by the High Court under Section 482 CrPC is clearly illegal and the impugned order passed by it has to be set aside." (Emphasis supplied)
16. Moreover, if the respondent is acting in breach of the settlement, the remedy lies elsewhere and not by seeking the stay of the order. The present petition clearly shows that maintenance has not been paid to the respondent, and she cannot be dragged from pillar to post to get what is due to her.
17. In view of the above, there is no reason to exercise the inherent jurisdiction in the present case. Hence, the present petition fails, and the same is dismissed. However, the petitioner is at liberty to approach the learned Trial Court for placing on record the settlement and the learned Trial Court is free to modify the order in accordance with the settlement so arrived at between the parties.
18. The petition stands disposed of, so also the pending miscellaneous applications, if any.
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19. The observations made herein before shall remain confined to the disposal of the petition and will have no bearing, .
whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 8th July 2025.
(ravinder) ::: Downloaded on - 08/07/2025 21:27:49 :::CIS