Allahabad High Court
Mohd. Islam vs State Of U.P. & Anr. on 9 July, 2019
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- CRIMINAL REVISION No. - 867 of 2019
Revisionist :- Mohd. Islam
Opposite Party :- State Of U.P. & Anr.
Counsel for Revisionist :- Mohd. Muballi Gussalam
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Chandra Dhari Singh,J.
Present criminal revision has been filed against the judgement and order dated 10.05.2019 passed by Special Judge, P.C. Act Ist Additional Sessions Judge, Lucknow in Criminal Appeal No.244 of 2018 in the case of Mohd. Islam vs. State of U.P. and other and order dated 02.08.2018 passed by Additional Chief Judicial Magistrate, court no.29, Lucknow including judgment and order dated 13.12.2012 passed by Additional Chief judicial Magistrate, court no.29 in complaint case no.116 of 2012 in the case of Smt. Munni Fatima vs. Mohd. Islam.
Learned counsel for the revisionist submitted that impugned order dated 13.12.2012 passed by Additional Chief Judicial Magistrate is illegal and arbitrary and without following procedure. While passing the order dated 13.12.2012 the court below has not issued any notice to the revisionist and passed ex parte order. After three years when recovery certificate has been issued for recovery of maintenance as awarded by the court below vide order dated 13.12.2012 then he came to know that ex parte order has been passed against the revisionist. He filed an application for recall of the order dated 13.12.2012.
He further submitted that in the recall application submission of the revisionist is that the revisionist has given divorce to opposite party no.2 on 13.08.2001, which was accepted by opposite party no.2 in Talaqnama dated 20.11.2001, therefore, she has not been residing with him since 2001. In the objection opposite party no.2 has denied the facts of divorce before the court below and submitted that there is no divorce between the parties. The court below rejected the recall application vide order dated 02.08.2018. The revisionist filed an appeal under Section 29 of the Protection of Women From Domestic Violence Act, 2005 against order dated 02.08.2018 and 13.12.2012.
Per-contra learned A.G.A. vehemently opposed the submissions made by learned counsel for the revisionist and submitted that since 2012 the revisionist has not paid any amount of maintenance as per awarded by the court below to the opposite party no.2. At the time of filing recall application he deposited Rs.25,000/- only as maintenance to the opposite party no.2.
Learned A.G.A. further informed that huge amount of arrears of maintenance is to be paid to the opposite party. Despite the order of the court he has not paid maintenance. There is no illegality in the order dated 02.08.2018 rejecting recall application which has been filed after three years. Reasons for condoning delay in filing recall application were not sufficient.
Learned A.G.A. further informed that appeal against the order dated 02.08.2018 rejecting recall application has also been dismissed.
I have heard learned counsel for the applicants and learned A.G.A. for the State and perused the record.
Reasons given in the impugned order dated 13.12.2012 are sufficient for awarding maintenance. Recall application is nothing but is misconceived application.
Considering the facts and circumstances of the case, I do not find any ground to interfere with the impugned orders.
The instant criminal revision is, accordingly, dismissed.
Order Date :- 9.7.2019
Asha
