Allahabad High Court
Mohd. Yasin vs State Of U.P. And Another on 21 November, 2022
Bench: Syed Aftab Rizvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 88
Case :- CRIMINAL REVISION No. - 1209 of 2008
Revisionist :- Mohd. Yasin
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Km. Satya Srivastava
Counsel for Opposite Party :- Govt.Advocate
Hon'ble Syed Aftab Husain Rizvi,J.
Case is taken up in the revised call. None appears either on behalf of the revisionist or opposite party no.2. However, learned A.G.A. for the State is present.
This criminal revision is filed to set aside the order dated 22.02.2008 passed by Special Judicial Magistrate-IIIrd, Jaunpur in Misc. Case No.186 of 2004 (Yasin Versus Guljar).
Opposite party no.2 moved an application under Section 128 Cr.P.C. for recovery of arrears of maintenance. The revisionist has filed his objection against it and he also moved an application under Section 127 Cr.P.C. alleging therein that order was passed to pay maintenance to Altaf son of applicant, Guljar Bano at the rate of Rs.500/- per month and also pay Rs.100/- per month towards arrears. An application was filed before Additional District Judge, Court No.1, Jaunpur bearing Case No.41 of 2003 in which an order has been passed that Mohd. Altaf will reside with Mohd. Yasin, the opposite party no.2 (revisionist). In the aforesaid circumstances, there is no justification to pay maintenance allowance at the rate of Rs.600/- per month. Learned Magistrate by the impugned order has rejected the application filed under Section 127 Cr.P.C. and has allowed the application filed by opposite party no.2, Guljar Bano for recovery of arrears of maintenance.
The grounds taken in the revision are that learned Magistrate has failed to consider the change of circumstances i.e. order dated 07.09.2007 passed by Additional District Judge, Court No.1 Jaunpur in Misc. Case No. 41 of 2003 by which the custody of Altaf has been given to the revisionist. In the changed circumstances, revisionist is not liable to pay maintenance allowance of Altaf to opposite party no.2 and order of maintenance required modification. The impugned order is non-speaking as no reason has been assigned as to why the application has been dismissed. Further ground is that it has been specifically stated that opposite party no.2 has remarried with one Javed, hence after second marriage and after order of the custody by a competent court. Opposite party no.2 is not entitled for retaining custody of minor son and maintenance on his behalf. The opposite party no.2 has neither filed any application to recall the order of custody of minor nor she preferred any appeal against it.
Learned Magistrate in the impugned order has disclosed all the facts of both the applications filed by the revisionist as well as opposite party no.2 and objections filed theiragainst. Learned Magistrate has observed that execution of the order passed by Additional District Judge-Court No.1, Jaunpur is not within ambit of this court and on this ground rejected the application of revisionist filed under Section 127 Cr.P.C. Learned Magistrate has further observed that there is no sufficient ground to stop the recovery proceedings and has allowed the application for recovery of maintenance allowance filed by opposite party no.2. There is no illegality or infirmity in the impugned order. It also appears that due to lapse of time, the matter has become infructuous and the parties have no interest in prosecuting the matter any further.
In view of the above, this criminal revision is dismissed.
Interim order, if any, stands vacated.
Certify this judgment to the lower Court immediately.
Order Date :- 21.11.2022
MN/-
