Allahabad High Court
Adil Rehman vs State Of U.P. And 2 Others on 1 October, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:160360 Court No. - 74 Case :- APPLICATION U/S 482 No. - 15539 of 2024 Applicant :- Adil Rehman Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- J.B. Singh Counsel for Opposite Party :- Ajay Kumar Mishra,G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. Applicant is husband of opposite party nos. 2 and 3 and he has approached this Court by way of filing present application under Section 482 Cr.P.C. challenging the order dated 08.12.2023 whereby application for interim maintenance was allowed ex-parte determining Rs. 10,000/- towards his wife and Rs. 5,000/- towards his daughter.
2. Applicant in the affidavit has disclosed that he has already suffered detention due to repeated default in payment of said amount as well as that he has filed an application U/s 125 (3) Cr.P.C. to recall the ex-parte order dated 08.12.2023, however, it appears that said application has not been decided finally till filing of present application. It has also been disclosed that the applicant has filed an application filed U/s 340 Cr.P.C.
3. In paragraph 15 of the affidavit, the applicant has claimed that his wife is working as a private Teacher in an International Public School, Ganganagar, Meerut and she is earning Rs. 28,000/- per month whereas applicant is "local reporter" having monthly income of about 3500-5000 (though no document in support of his claim was filed).
4. Sri Sunil Kumar, learned counsel for applicant submits that opposite party-2 has not stated that one child is with him, however, said statement is contrary to averments made in paragraph 4 of application filed U/s 125 Cr.P.C. where she has disclosed that son is with applicant whereas daughter is with her.
5. Learned counsel by referring relevant provisions of Section 125 Cr.P.C., specifically sub-clause (6) further submits that in order to grant interim maintenance, there must be a reasoning that it was reasonable to grant it. He further submits that amount of Rs. 10,000/- for complainant and 5,000/- for their child was not reasonable.
6. Learned counsel fairly submits that since no reply and affidavit in terms of judgment of Supreme Court in Rajnesh Vs. Neha and another, 2021 (2) SCC 324 was filed, therefore, no additional document could be filed in present proceedings.
7. Sri Ajay Kumar Mishra, learned counsel for opposite parties- 2 and 3 has opposed above submissions and submits that despite repeated opportunities, applicant has failed to file reply/affidavit in terms of Rajnesh (supra), therefore, learned Family Court on basis of material available has determined interim maintenance which is not on higher side. Learned Family Court has assigned reasons also.
8. In order to appreciate above submissions, I have carefully perused the impugned order and other documents available on record.
9. Impugned order is quoted below in its entirety :-
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??????? ?? ?? ?? ????????????? ?? ??????? ??? ?????? ????? ???? ?? ??? ??? ???? ??????? ?????? ???? ????????????? ?? ???? ??????? ?? ?? ???? ???
?????????? ?? ?? ?? ???????? ?? ?????? ???????? ?????? ????? ???? ???? ?? ????? ?????? ?? ???? ?? ??????? 18 ? ????? ???? ??? ???
???????? ?? ????? 18 ? ??? ???????? ???? ?? ?? ???? ???????? ? ????????? ??????? ?????????? ?????? ?? ?? ??????? ?????? ???? ??? ?? ????????? ??? ???? ???? ???? ?? ??? ??? ???? ??? ???? 7 ???? ??????? ?? ???????? ??? ?? ??? ????? ??? 3 ???? ?????????? ?? ???????? ?? ?? ?????????? ?? ??? ????? ?? ?? ???? ??? ???? ???????? ??????? ?? ??????? ?????? ?? ??? ??????? ??????? ??????? ??? ???? ???? ?????? ?? ??????? ?? ???? 50000/- ????? ???????? ?? ?? ?? ????? ?????????? ?? ??????? ?? ???? ?? ?? ????? ??? ??? ?? ????????? ??????? ???????? ?? ????? ???? ?? ???
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?? ??????? ???? ?? ?? ???????? ??????? ?? ???????? ????? ?? ??? ?????????? ?? ?????? ?????? ?? ??????? ?? ??? ???? ????? ??? ?? ??? ?? ??? ??? ?????? ??? ??????? ?? ?????? ???? ? ??????? ?? ????? ?? ?? ????? ??? ??????? ?????????? ? ?????? ?????? ?? ??? ???? ???? ??? ????? ?? ?? ??????? ?? ?? ????? ? ??????? ??????? ?? ?? ?? ?????????? / ????? ? ?????? ?????? ?? ??? ???? ???? ??? ??????? ??????????? ?? ????????? ?? ????????????? 9? ?????? ??????? ??? ???? ?????? ?? ?? ???? ?? ????? ??? ?? ??????? ???? ???? ????? ???
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?????????? ??????? ???? ???? ?? ????????????? 9? ?????? ??????? ??? ???? ?????? ? ?? ???? ?? ????? ??? ?? ??????? ???? ???? ?? ?? ??????? ???? ????? ?? ?????? ???? ???? ?? ?? ?? ?????????? ??????? ???? ???? ?? ???? ??????? ??? ???? ?? ??? ???? 10,000/- ????? ???????? ?? ?? ?? ??? ?????? ?????? ??? ????? ?? ???? ??????? ??? ???? ?? ??? ???? 5,000/- ????? ???????? ?? ?? ?? ??????? ??? ???? ????????? ???? ???????? ???? ???? ?? ?????? 24.03.2023 ?? ????? ??? ??? ???? ????????? ???? ?????????? ??? ?????? ?????? ?????? ???? ???? ?????? ?? ??? ???? ?? ?????? ??????? ???? ?? ?????? ??? ????????? ??? ?????? ?????? ?? ??? ?? ??? ?????? ???? ?????? ?? ???????? ?? ??????? ????????????? 9? ??????? ????????? ???? ???? ??? ??????? ?? ?? ?? ????????????? 3? ???????? ???? 125 ?????????? ?? ??????? ??? ???? ???? / ?????? ????? ???? ?? ??? ??? ??? ??????? ?? ???? ???? ???? / ?????? ????? ???? ?? ??? ?? ????? ???? ?????? ???? ???? ??? ???????? ?????? ???? ????/ ?????? ?????? 09.01.2023 ?? ??? ????
10. Application U/s 125 Cr.P.C. was filed on 05.12.2022 wherein it was disclosed that opposite party ? 2 was working in an International Public School and was getting Rs. 28,000/- per month as salary, however, due to incordial behaviour of applicant and his family members, she resigned from said post. She has also disclosed that applicant has filed a suit for restitution of conjugal rights and that he has a business of shuttering in which he is normally earning Rs. 1,00,000/- per month as well as that his mother is getting pension of Rs. 40,000/-
11. According to order sheet available on record, applicant was granted time to file objections on 17.11.2023, 20.11.2023 and 27.11.2023, however, when no reply/affidavit was filed, the Family Court considered the material available on record and in terms of second proviso to Section 125 Cr.P.C. as well as sub-section (6) of Section 125 Cr.P.C. as applicable in State of U.P. has decided the application and determined the quantum of maintenance considering it to be reasonable.
12. Court takes note that despite opportunities, neither any reply/affidavit was filed by the applicant nor he was present on day when impugned order was passed.
13. In the affidavit filed by opposite party-2, it was disclosed that present applicant has a business of shuttering and he is normally earning more than Rs. 1,00,000/- per month though it was not supported by any document, still considering that there was no objection to it, the Family Court has passed impugned order, therefore, Family Court has not committed any error in accepting the said amount.
14. It is also not disputed that provisions of Section 125 Cr.P.C. are a social Legislation which is for benefit of wife and children. Relationship between parties is not disputed.
15. As referred above, Family Court has assigned reasons that it was reasonable to grant interim maintenance and determined it to tune of Rs. 15,000/- (10000/- + 5000/-) respectively to opposite parties ? 2 and 3. Term 'Reasonable' has to be considered on basis of material available. It cannot be put in terms of any fixed formula.
16. Even otherwise, not only Legislation has a background of welfare legislation but it is not disputed that it is only at the stage of interim maintenance and all arguments on facts and law along with evidence could still be given by both parties before the Family Court and thereafter, final order will be passed to decide U/s 125 Cr.P.C. finally. Any observation of this Court, at this stage, will definitely prejudice case of either party which would not be in the interest of justice.
17. Amount of Rs. 10,000/- and 5,000/- could not be considered as unreasonable. There is no material before this Court that applicant is not earning said amount which could render said amount unreasonable. The applicant has availed remedy U/s 125(3) as well as U/s 340 Cr.P.C. but he has not paid any penny towards maintenance amount and he has already suffered jail for default.
18. Court also takes note that an application U/s 125(3) Cr.P.C. to recall the impugned order is still pending, therefore, there was no reason for applicant to rush this Court to challenge the impugned order on merit.
19. In aforesaid circumstances, all arguments submitted by learned counsel for applicant are sans merit, accordingly, prayer of the application is rejected as there is no reason to interfere with impugned order.
20. In case of default, the opposite parties ? 2 and 3 will be at liberty to take remedy to execute the order. In case application U/s 125 (3) Cr.P.C. is still pending, the same shall be decided within a short period.
21. Application stands disposed of.
22. Registrar (Compliance) to take steps.
Order Date :- 1.10.2024 N. Sinha