Inamul Haq vs State Of U.P. & 3 Others
2014 Latest Caselaw 1641 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 46
 

 
Case :- CRIMINAL REVISION No. - 2255 of 2013
 
Revisionist :- Inamul Haq
 
Opposite Party :- State Of U.P. & 3 Others
 
Counsel for Revisionist :- Keshari Nath Tripathi,Mukhtar Alam
 
Counsel for Opposite Party :- Govt. Advocate,Shams Uz Zaman
 

 
Hon'ble Kalimullah Khan,J.

This Criminal Revision u/s 397/401 Cr.P.C. has been preferred by the revisionist Inamul Haq challenging the impugned order dated 31.7.2013, passed by learned Additional Chief Judicial Magistrate, Baghpat in Misc. Case No.1633 of 2011, Smt. shahnaz and two others Vs. Inamul Haq u/s 125 Cr.P.C. P.S. Doghat, District Baghpat, whereby he has awarded a maintenance amount of Rs. 2,000/- per month to Smt. Shahnaz, the wife of the revisionist, and Rs.1,000/- to Danish, son of the revisionist, and Rs.1,000/- to baby Sofia, daughter of the revisionist, to be payable from the date of the order.

The legality; correctness and propriety of the aforesaid order dated 31.7.2013, has been challenged in this criminal revision.

In nutshell, the case of Smt. Shahnaz, wife of the revisionist is that six years ago from the date of filing the application u/s 125 Cr.P.C., she was married with the revisionist. Since beginning, he started demanding additional dowry viz a bullet motorcycle and cash Rs.1,00,000/-. The aforesaid demand could not be fulfilled, hence, he started practicing cruelty and torturing his wife, Smt. Shahnaz. He used to assault and oust her from his house and she was bound to take shelter at her parents house. Panchayat persuaded the revisionist to take his wife and children back. Be it known that during the aforesaid period of six years, Danish, aged about 3 years, and Sofia, aged about 1-1/2 years, on the date of filing the application, had been born out of the said wedlock.

It was pleaded in the application u/s 125 Cr.P.C. that having sufficient means to maintain them, revisionist was refusing to maintain themselves. He was alleged to be a contractor in a rice mill, installed at Rewari, Sonipat, and was earning Rs.40,000/- per month. Rs.5,000/- for herself and Rs.4,000/- for each of the children, total Rs.13,000/- was asked for as per month maintenance amount.

Somehow or the other after a good deal of exercise, revisionist appeared before the court of learned Magistrate and filed his written statement denying the allegations made against him in the application u/s 125 Cr.P.C. He pleaded that he is a daily labour and he is not the contractor in the said rice mill and he does not earn Rs.40,000/-per month. According to him, without any lawful justification, rhym or reason, his wife along with his two children is living separately at her parental house. The relations in between the parties became strained on account of his failure to bring his wife and children. Therefore, a panchayat was held and it was resolved that on payment of a lump sum amount of Rs.80,000/- the marital tie in between him and his wife shall come to an end. He paid the said amount to his wife but still he is ready and willing to maintain his wife and children if they come to his house and live together. He denied to have ever asked for dowry demand. He further stated that his wife and children are living at her parental house under the influence of her parents.

It is not out of place to mention here that at one occasion, the case was ordered to proceed exparte against him and the evidence of applicant Smt. Shahnaz was recorded and thereafter all of sudden, revisionist appeared before the learned trial court and made an application for recall of the exparte order and to be provided opportunity to defend himself. On a cost of Rs.200/-, the exparte order was recalled and he was allowed to contest the proceeding. Consequently, he filed the aforesaid written statement but he did not cross examine his wife, Smt. Shahnaz, as a result of which, opportunity to cross examination was closed and the case was fixed for recording his evidence but he did not avail that opportunity. Neither he appeared nor applied for adjournment nor adduced any evidence oral or documentary in support of his case. Of course, an application seeking exemption of his personal appearance on 29.4.2013, the date fixed for recording the evidence adduced by him, was made on his behalf, which was allowed, but since no adjournment application was made by him, his opportunity to adduce evidence was closed and 1.6.2013 was fixed for arguments. On that date, he did not appear nor made any application to recall the order dated 29.4.2013 by expressing his desire to adduce evidence in support of his pleadings. The learned trial court fixed another date 6.6.2013 for arguments of the parties. Even on 6.6.2013, he did not appear and a further date 17.7.2013 was fixed for arguments. On 17.7.2013, he again did not appear. The arguments of applicant-Smt. Shahnaz and two others were heard and 31.7.2013 was fixed for delivery of the judgment with a liberty to the revisionist to appear and make his submissions before the court by 30.7.2013 i.e. a day before the date fixed for judgment. But still, he did not appear nor made any submission by 30.7.2013. In this way, he did not avail the opportunity of hearing made before the delivery of the judgment. Consequently, on 31.7.2013, the impugned judgment and order dated 31.7.2013 was pronounced, whereby learned trial court has allowed application made u/s 125 Cr.P.C. awarding the maintenance to the applicants as aforesaid to be payable from the date of filing the application.

Feeling aggrieved, this criminal revision has been directed by the revisionist husband.

Heard learned counsel for the revisionist, learned A.G.A. and perused the record.

Learned counsel for the revisionist has submitted that the impugned order is against the law and facts of the case; it is no order in the eyes of law; no opportunity was accorded to him to lead evidence and without any rhyme or reason, his evidence was struck off. On 29.4.2013, the date fixed for his evidence, he could not appear before the court below but applicant seeking his exemption for that date filed an application which was allowed still opportunity of adducing evidence was closed, which is not proper. The impugned judgment is exparte judgment and that deserves to be set aside.

The perusal of the ordersheet maintained on the trial court record shows that sufficient opportunity has been given to the revisionist but he did not avail. Neither he cross-examined his wife opposite party before the trial court nor he adduced any evidence to prove the pleadings made by him in his written statement. The trial court proceeded exparte because no adjournment application was made on his behalf. The trial court was left with no option except to proceed exparte. Even after proceeding exparte, several times, the case was adjourned, but revisionist did not make any application to recall the exparte order. Thereafter, learned trial court heard the arguments of the applicant, his wife, and fixed 31.7.2013, for pronouncement of the judgment, but by the same order, the right of the applicant to appear and make his submission before the trial court was left open, but even then, he did not appear before the court nor he made any submission. Under these scenario of fact, the impugned judgment was pronounced. The trial court took full precaution in providing him opportunity of hearing.

The perusal of the impugned judgment and order reveals that on the basis of the pleadings of the parties, learned trial court framed points for determination viz whether applicant was legally wadded wife of Inamul Haq (revisionist) and applicants Danish and Sofia (minors) were born out of this wedlock; whether Shahnaz, the wife of the revisionist, had sufficient cause to live, separately, from her husband along with her children; whether the applicants are able to maintain themselves; whether revisionist having sufficient means to maintain his wife and children, refuses or neglects to maintain them; whether the applicants were entitled to the maintenance.

The findings, recorded on those issues by learned trial court, are based on the weight of the evidence on record and that is not perverse.

Audi alteram partem (or audiatur et altera pars) is a Latin phrase that means "hear the other side too", or "hear the alternative party too". It is most often used to refer to the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.

"Audi alteram partem" is considered a principle of fundamental justice or equity in most legal systems. The principle includes the rights of a party or his lawyers to confront the witnesses against him, to have a fair opportunity to challenge the evidence presented by the other party, to summon one's own witnesses and to present evidence, and to have counsel, if necessary at public expense, in order to make one's case properly.

It is the cardinal principle of natural justice that nobody should be condemned unheard. In other words, according opportunity of hearing, is a cardinal principle of natural justice but it does not mean that any coercive steps to be taken against the party, who does not opt to avail that opportunity in a proceeding u/s 125 Cr.P.C. The only thing is required that the Judge should be fair and impartial in handling the case before him but no further. Any overdoing at his part would be detrimental to the interest of other party causing grave injustice to that party which must be avoided at any cost.

Here in the case in hand, sufficient opportunity has been given by the learned trial court and nothing more is expected from him.

No incorrectness, illegality or impropriety appears to have occurred in the impugned judgment and order.

Revision is dismissed. Impugned judgment and order, dated 31.7.2013, is upheld. Interim order, dated 5.9.2013, passed by the revisional court stands vacated.

Registry is directed to communicate the copy of this judgment to the learned trial court, who in turn, is directed to inform respondent no.2, Smt. Shahnaz, wife of revisionist, Inamul Haq, for her information and legal action, if so advised.

Order Date :- 12.5.2014

m.a.