Naseem Shah vs The State Of U.P And Ors.
2014 Latest Caselaw 2673 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 26
 

 
Case :- U/S 482/378/407 No. - 2963 of 2014
 

 
Applicant :- Naseem Shah
 
Opposite Party :- The State Of U.P And Ors.
 
Counsel for Applicant :- Sanjai Kumar Singh
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Ajai Lamba,J.

This petition filed under Section 482 of the Code of Criminal Procedure  prays for quashing order dated 4.2.2014 vide which application of the petitioner-husband filed under Section 126(2) of the Code of Criminal Procedure has been decided.

In the contention of the learned counsel appearing for the petitioner, the order to the extent that it enhances the maintenance amount, payable to the respondents-wife and daughter, is without jurisdiction. Such an order is contemplated only under the provisions of Section 127 of the Code of Criminal Procedure.  On an application under Section 126(2) of the Code of Criminal Procedure ex parte proceedings initiated against the respondent is required to be set aside and the said respondent/husband is given liberty to join proceedings. Enhancement of maintenance is not contemplated.

I have heard the learned counsel.

Sub Section (2) of Section 126 of the  Code of Criminal Procedure reads as under:

"(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proceed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons- cases.

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as the Magistrate may think just and proper."

Considering scope of proviso to Sub-Section 2 of Section 126 of the Code of Criminal Procedure prima facie it appears that maintenance allowance has been enhanced without jurisdiction.

On a query of the court, learned counsel for the petitioner admits that the petitioner has not paid amount of maintenance, payable to the respondents under the original order dated 24.12.2008. Surely, On coming to know of the said order the said amount was required to be paid.

Let the said amount till date be deposited with Registrar of this Court by 30th of July, 2014.

It is only on deposit of the said amount that notice would be issued to respondents.

List on 30.7.2014.

Order Date :- 8.7.2014

A.Nigam