Allahabad High Court
Vinod Vishwkarma vs State Of U.P. And Another on 1 April, 2022
Bench: Mohd. Aslam
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 88
Case :- APPLICATION U/S 482 No. - 21783 of 2021
Applicant :- Vinod Vishwkarma
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Mohd Shamim Khan,Deepak Singh Patel
Hon'ble Mohd. Aslam,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The instant application under Section 482 Cr.P.C. has been moved on behalf of applicant for quashing the impugned ex-parte order dated 16.10.2020 passed by learned Additional Principal Judge, Family Court-2, Kanpur Nagar as well as entire proceeding of Case No.99 of 2019 (Smt. Shanu Vs. Vinod Vishwakarma), under Section 125 of Cr.P.C. and the order dated 1.9.2021 passed by learned Additional Principal Judge, Family Court-2, Kanpur Nagar in Execution No.764 of 2021 (Smt. Shanu Vs. Vinod Vishwakarma), under Section 125(3) of Cr.P.C., Police Station- Bajariya, District Kanpur Nagar, whereby the learned court below has issued recovery warrant against the applicant.
It is submitted by learned counsel for the applicant that the order in the proceeding under Section 125 of Cr.P.C. was passed ex-parte and the interim maintenance of Rs.5000/- per month was awarded to the opposite party no.2. It is further submitted that in execution proceeding of the same, the recovery warrant has been issued, therefore, the order is liable to be set aside.
Learned A.G.A. has opposed the application and has submitted that the application under Section 125 Cr.P.C. was allowed on 16.10.2020 by learned Additional Principal Judge, Family Court-2, Kanpur Nagar in Smt. Shanu Vs. Vinod Vishwakarma and has issued recovery warrant against the applicant. It is further submitted that applicant has alternative remedy to move application for setting aside the ex-parte order under Section 126 of Cr.P.C. and without availing that alternative remedy, the present application has been directly filed before this Court. It is further submitted that although in presence of alternative remedy, the present application under Section 482 Cr.P.C. is not maintainable, but in the rare case where interest of justice demands, so in this case without exhausting alternative remedy, the application under Section 482 Cr.P.C. is not maintainable and is liable to be dismissed.
I have gone through the file. It appears that the Case No.99 of 2019 (Smt. Shanu Vs. Vinod Vishwakarma), under Section 125 of Cr.P.C. was decided ex-parte by learned Additional Principal Judge, Family Court-2, Kanpur Nagar on 16.10.2020 granting maintenance of Rs.5000/- per month to the opposite party no.2 (photocopy of the ex-parte judgment is attached as page nos.23 & 24 of the paper book). It appears also that a petition for divorce under Section 13 of Hindu Marriage Act was allowed ex-parte vide order dated 9.7.2019 by learned Additional Principal Judge, Family Court-2, Kanpur Nagar in Case No.1196 of 2018 even then the applicant is bound to maintain his divorced wife till her remarriage. This case is not an exceptional case in which the applicant has alternative remedy under Section 126 of Cr.P.C. for recalling the ex-parte judgment and, therefore, I find no merit in the application under Section 482 Cr.P.C. as the applicant has option to move application under Section 126 of Cr.P.C. before the court below for recalling of ex-parte judgement.
The present application under Section 482 Cr.P.C. is devoid of merits and is, accordingly, dismissed.
Order Date :- 1.4.2022
Anil K. Sharma
