Smt. Shabnam And 2 Others vs Mohd. Irfan Mikrani
2022 Latest Caselaw 873 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 16
 
Case :- CRIMINAL REVISION No. - 78 of 2016
 
Revisionist :- Smt. Shabnam And 2 Others
 
Opposite Party :- Mohd. Irfan Mikrani
 
Counsel for Revisionist :- Mohammad Aslam Khan,Mirza Shariq Aziz,Mohd.Zaid Khan,Mohiuddin Khan
 
Counsel for Opposite Party :- Anil Kumar Shukla,Umesh Kumar Shukla
 
Hon'ble Brij Raj Singh,J.

Heard Sri Mohiuddin Khan, counsel for the revisionists, Sri Anil Kumar Shukla for the sole opposite party.

The present revision under Section 19(4) of the Family Courts Act, 1984 has been preferred against the judgment dated 10.11.2015 passed by Principal Judge, Family Court Bahraich.

The revisionist No. 1 is the wife and the revisionist Nos. 2 and 3 are her sons. The order has been passed by the court below and the application for maintenance under Section 125 Cr.PC. has been rejected.

Counsel for the revisionists has submitted that the court below has overlooked the provisions enshrined in Section 125 Cr.P.C. and while deciding the case, maintenance to minors has not been awarded, which is a mandate of Section 125 Cr.P.C. Counsel for the revisionists has further submitted that there are ample evidences on record with regard to the status of Mohd. Rukhsan, the revisionist No. 3, who is still alive, but the court below without discussing any evidence on record illegally relied upon the bald statement of the sole opposite party and came to hold that the revisionist No. 3 is dead and proceeded to pass the impugned order. The counsel for the revisionist has further submitted that opposite party has remarried and out of the said wedlock a male child was born and has further submitted that the order passed by the court below is non-speaking order and has been passed without framing issues.

Per contra, Sri Shukla, counsel for the opposite party submitted that the revisionist No. 1 is not cooperating in the case filed under Ward and Guardian Act and order for custody of child has been passed in favour of the opposite party and the custody of the child has not been handed over by the revisionist No. 1. Sri Shukla, counsel for the opposite party has contended that the order passed by the court below is justified and needs no interference.

I have seen the impugned order, which indicates that no issues have been framed by the court below while deciding the application under Section 125 Cr.P.C. The revisionist No. 3 is dead or alive, in this respect, no any conclusive evidence has been discussed by the court below and only on the basis of the bald statement finding has been returned that the revisionist No. 3 is no more whereas the counsel for the revisionists categorically submitted that the revisionist No. 3 is alive. Further, the Court point out here that this fact was to be looked into by the court below whether the revisionist Nos. 2 and 3 being children, are entitled for the maintenance or not. The court below passed order in a cursory manner and such order can not survive in the eyes of law. In the opinion of the Court, the order impugned requires interference.

Accordingly, I set aside the order dated 10.11.2015 and remand the matter back to the Court below and it is further directed that the court below will decide it within a period of 8 months from today. The court below while deciding the case will keep in mind the observations made hereinabove. The copy of this order will be supplied by the counsel for the revisionists within two weeks from today.

The revision is disposed of accordingly.

Order Date :- 8.4.2022

Arun K. Singh