Allahabad High Court
Harish Chandra vs State Of U.P. & Another on 12 September, 2017
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 53
Case :- CRIMINAL REVISION No. - 1968 of 2011
Revisionist :- Harish Chandra
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Abhishek Bhasin,Syed Imran Ibrahim
Counsel for Opposite Party :- Govt. Advocate,Ramesh Chandra Gupta
Hon'ble Harsh Kumar,J.
Learned counsel for the revisionist has not filed the latest salary slip of the revisionist in compliance with the order dated 23.8.2017.
Heard learned counsel for the revisionist, learned counsel for the opposite party no.2, learned AGA for the State and perused the record.
The revision has been filed against the judgment and order dated 14.3.2011 passed by Additional Sessions Judge, Court No.1, Fatehpur in Criminal Appeal No.63 of 2008, setting aside the judgment and order dated 27.8.2008 passed by Judicial Magistrate in Case No.41 of 2008, under section 4 (1) of Protection of Woman from Domestic Violence Act, 2005, allowing the appeal and directing the revisionist to provide residential accommodation to opposite party no.2 and her son in his house or provide residence to them elsewhere as well as for making payment of Rs.1500/- per month to the opposite party no.2 for meeting with the educational expenses of her son.
Learned counsel for the revisionist submitted that the marriage between the revisionist and opposite party no.2 was solemnized about 18 years before filing of the complaint under Protection of Woman from Domestic Violence Act, 2005 by the opposite party no.2 in the year 2008; that the marriage between the parties was dissolved by a decree of divorce on 29.1.1998; that the opposite party no.2 deserted the revisionist in the year 1990 while the son was born to her in the year 1991, so the son of opposite party no.2 is not born from the revisionist and is not legitimate son of revisionist; that the learned Magistrate had rightly dismissed the application under Protection of Woman from Domestic Violence Act, 2005 and the learned Additional Sessions Judge has acted wrongly and illegally in setting aside the judgment and order of Magistrate; that the learned Additional Sessions Judge has acted wrongly in holding that the son is legitimate son of revisionist and the revisionist has not obtained any declaratory decree from competent court, declaring that Deepak is not his legitimate son; that the impugned order is liable to be set aside and by setting aside the impugned order passed in appeal, the order dated 27.8.2008 passed by Judicial Magistrate is liable to be restored.
Per contra, learned AGA and learned counsel for opposite party no.2 supported the impugned judgment and order passed in appeal and contended that the revisionist had obtained an exparte decree of divorce surreptitiously, which was set aside on application under Order IX Rule 13 CPC and after restoration of Matrimonial Petition no.13 of 1997, the same has been finally disposed of on merits vide judgment and decree dated 11.7.2016 of Judge, Family Court, Fatehpur dismissing the divorce petition of the revisionist; that the revisionist has not made any payment under the impugned order towards educational expenses of his son; that undisputedly the son has born during subsistence of marriage and there is presumption of his legitimacy and the allegations contrary to the same are false and may not be accepted; that the learned Magistrate had wrongly rejected the application under Protection of Woman from Domestic Violence Act, 2005, despite the fact that exparte decree of divorce had been set aside; that the revisionist is working as Cashier in the State Bank of India and is getting handsome salary particularly after enforcement of 7th Pay Commission; that the revision has been filed with wrong and baseless allegations and is liable to be dismissed.
Upon hearing the parties counsel and perusal of record, I find that it is not disputed between the parties that exparte divorce decree was set aside and divorce petition has been dismissed and the relationship of husband and wife between parties still exists. The amount of Rs.1500/- may not be sufficient to meet the educational expenses of son of revisionist and may not be considered to be disproportionate to the income of revisionist as Cashier in State Bank of India. The learned counsel for the revisionist has failed to show any illegality, irregularity, impropriety or incorrectness in the impugned order and there is no sufficient ground for interfering with or setting it aside the impugned order. The revision has got no force and is liable to be dismissed.
The revision is dismissed, accordingly.
Interim order, if any, stands vacated.
Let a copy of this order be sent to Magistrate concerned for ascertaining realization of the amount from the revisionist in compliance with the order dated 14.3.2011 passed in Criminal Appeal No.63 of 2008 expeditiously.
Order Date :- 12.9.2017
Tamang
