Allahabad High Court
Shashank Tripathi And Another vs State Of U.P. And Another on 31 July, 2023
Bench: Ram Manohar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:152588
Court No. - 50
Case :- CRIMINAL REVISION No. - 2760 of 2023
Revisionist :- Shashank Tripathi And Another
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Ajay Pandey
Counsel for Opposite Party :- G.A.,Devendra Tiwari Deva
Hon'ble Ram Manohar Narayan Mishra,J.
Counter affidavit filed by learned counsel for the opposite party No.2 is taken on record.
Heard learned counsel for the revisionists, Sri Devendra Tiwari Deva, learned counsel for the opposite party No.2, learned AGA for the State and perused the material placed on record.
Instant criminal revision has been preferred by the revisionist, who is opposite party before the court below, against the impugned judgement and order dated 11.9.2018 passed by passed by learned ACJM, Court No.8, Allahabad in Complaint Case No.1007 of 2013, under Section 12 of Domestic Violence Act, 2005 as well as order dated 18.7.2022, passed by Civil Judge (JD)/FTC, Court No.21, Allahabad in execution proceeding regarding order dated 11.9.2018. The revisionist has also challenged the order dated 27.1.2023, passed by learned Session Judge, Allahabad in Criminal Appeal No.244 of 2022, under Section 29 of Protection of Women from Domestic Violence Act, 2005, Police Station Dhoomanganj, District Allahabad, by which the order dated 11.9.2018 has been affirmed by the court below.
Learned counsel for the revisionists submitted that learned ACJM, Court No.8, Allahabad in Complaint Case No.1007 of 2013, filed under Protection of Women from Domestic Violence Act, 2005 directed the revisionist to pay Rs.15,000/- as monthly maintenance to opposite party No.2. However, in impugned order, it is stated that if the applicant is receiving any amount of maintenance ordered by the competent Court, the said amount shall be liable to be adjusted in amount of maintenance awarded in instant order. Prior to this, Principal Judge, Family Court, Allahabad in maintenance Case No.256 of 2013, under Section 125 Cr.P.C. awarded Rs.5,000/- monthly maintenance, which is payable from the date of order i.e. 5.12.2017 to present opposite party No.2 Smt. Gudiya. Opposite party No.2 filed a petition under Section 12, 25 and 27 of Hindu Marriage Act against revisionist before Principal Judge, Family Court Allahabad which was allowed vide ex-parte judgement dated 13.12.2017 whereby a decree of divorce has been awarded and marriage of revisionist and opposite party No.2 has been dissolved. In said ex-parte judgment, the revisionist is directed to pay Rs.4 lacs as alimony payment to the opposite party No.2 under Section 27 of Hindu Marriage Act and Rs.5,000/- per month as maintenance to her from the date of order i.e. 13.12.2017 as life sustenance allowance. Prior to final disposal of criminal case under Section 12 of Domestic Violence Act, the learned Magistrate awarded Rs.2,000/- per month to opposite party No.2 on 19.7.2014. The revisionist has paid Rs.1 lac and Rs.3 lacs towards amount awarded against him in ex-parte judgement of divorce passed by the Principal Judge, Family Court. At present, recovery warrant has been issued against the revisionist for Rs.6,45,000/- by learned Civil Judge (JD)/FTC, Court No.21, Allahabad for execution of judgement and order dated 11.9.2018 passed by learned Magistrate under section 12 of Domestic Violence act. He further submitted that the amount awarded against the revisionist in decree of divorce as well as in proceeding under Section 125 Cr.P.C. are liable to be adjusted in the light of judgement dated 11.9.2018. He lastly submitted that the financial condition of the revisionist is not viable to pay the amounts of maintenance awarded in different proceedings. The amount of Rs.15,000/- per month awarded in impugned order dated 1.9.2018 passed by learned Magistrate in proceeding under Section 12 of Domestic Violence Act is liable to be adjusted from amount ordered in proceeding under Section 125 Cr.P.C. as well as in decree of divorce and the remaining amount may kindly be reduced to some extent, so that the revisionist may be in a position to deposit the same before the court for onward payment to opposite party No.2. Even the divorce proceeding were initiated by the opposite party No.2, which was decreed ex-parte.
Per contra, learned counsel for the opposite party No.2 submitted that the revisionist has not paid any amount awarded in order dated 11.9.2018 passed under Section 12 of Domestic Violence Act. Even he has not paid the interim maintenance of Rs.2,000/- per month awarded under domestic violence act. He has not paid any amount towards maintenance awarded under Section 125 Cr.P.C., which is payable to opposite party No.2. The recovery warrant to the tune of Rs.6,45,000/- is already pending, which was issued by the court below and execution proceeding before the competent authority is still pending and cannot be executed due the change of address of the revisionist. The revisionist apart from working in private company is having sufficient property and assets to pay the amount of maintenance awarded against him.
Considering rival submissions of learned counsel for the parties and on perusal of impugned orders passed by courts below as well as by appellate court and material placed on record, I am of the opinion if the maintenance awarded by the learned Magistrate in impugned order dated 11.9.2018 to the tune of Rs.15,000/- per month is adjusted from the amount ordered in the decree of divorce as well as in proceeding under Section 125 Cr.P.C., which is Rs.5,000/- per month each, the balance amount of Rs.5,000/- per month will be liable to be paid in impugned proceeding under Section 12 of Domestic Violence Act, provided the revisionist paid the arrears of those two proceedings as well as keep on paying the amount of total Rs.15,000/- per month as ordered in proceeding under Section 13 of Hindu Marriage Act and Section 125 Cr.P.C. as well as under Section 12 of Domestic Violence Act. Therefore, it is directed that the parties will appear before the court below within 15 days and the arrear of maintenance will be calculated, which is payable to the opposite party No.2, subject to order passed in all three proceedings, as said above. The amount paid by the revisionist will be adjustable towards the outstanding arrear.
The revisionist will be liable to pay Rs.5,000/- per month after adjustment of Rs.10,000/- towards maintenance already ordered in decree of divorce as well as in proceeding under Section 125 Cr.P.C., the balance amount will be liable to be paid by the revisionist from the order dated 11.9.2018.
However, if the revisionist fails to pay the arrear of other two proceedings, then he will have to pay the total amount of Rs.15,000/- awarded in impugned order dated 11.9.2018 and any adjustment will be carried out subsequently. The arrears will be payable within three equal monthly installments, which will consist arrears of three proceedings to the tune of Rs.5,000/- each per month. The payment of first installment will be paid by 10.9.2023, second installment on 10.10.2023 and the last installment will be paid on 10.11.2023.
The revisionist is directed to pay regular maintenance of Rs.5,000/- per month in each proceedings, so that the total amount covers Rs.15,000/- per month after due adjustments.
Any infraction in above order will entail the court below to issue coercive process against the revisionist.
Order Date :- 31.7.2023
Kamarjahan
