Santosh Kumar Tiwari vs State Of U.P. And Another
2023 Latest Caselaw 8759 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- APPLICATION U/S 482 No. - 29695 of 2022
 

 
Applicant :- Santosh Kumar Tiwari
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ranjeet Kumar Yadav,Sonu Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsel for the applicant, learned A.G.A. and perused the record.

By moving this application under Section 482 Cr.P.C., the prayer is made to quash the order dated 05.07.2013 passed by the Judicial Magistrate, Court No.3, Deoria and order dated 2611.2021 passed by the Additional Principal Judge Family Court, Deoria in Misc. Case No.416 of 2019 (Smt. Sundari Vs. Santosh Kumar Tiwari, under Section 128 Cr.P.C., Police Station Lar, District- Deoria.

Vide order dated 05.07.2013, the trial court awarded Rs.3,000/- per month maintenance to the opposite party no.2 from the date of order and vide order dated 26.11.2021, the trial court ordered for auction of the property of the applicant.

It is submitted by the learned counsel for the applicant that the order of maintenance was passed on 05.07.2013 and the application for its execution was moved on 21.08.2015, while as per Section 125(3) of Cr.P.C., the application should be moved within one year of the amount being due. Regarding rest of the amount, the counsel for the applicant could not show any sufficient reason that how and why the amount due to him should not be recovered. The order dated 26.11.2021 is said to be an ex-parte order. This order has been passed in execution of order dated 05.07.2013, by which, the opposite party no.2 was awarded maintenance to the tune of Rs. 3,000/- per month. Admittedly, from the very first date of the order till today, the applicant has not paid even a single penny to the opposite party no.2 on the ground that opposite party no.2 is not his wife. When the counsel for the applicant was asked that how the applicant can say that the opposite party no.2 is not his wife, he has submitted before the Court that when this marriage was solemnized, the applicant was only 12-13 years of age, thus, he was not major and his marriage cannot be said to be valid. Admittedly, after attaining majority the applicant has not repudiated his marriage. Otherwise also, the judgment and order dated 05.07.2013 passed by the Judicial Magistrate was challenged by the applicant in the revisional court and admittedly the revision has been rejected. So far as the order dated 26.11.2021 is concerned, this is an order on execution application. As per order itself, the arrest and recovery warrants of the applicant are being issued, but the same have not been served, hence, the trial court has passed the order of attachment of the property of the applicant.

After going through the above factum, the original maintenance order is final and admittedly, the applicant has not paid any amount to the opposite party no.2.

In my opinion, the arguments of the learned counsel for the applicant have no force.

However, the trial court is directed to issue the attachment of the property of the applicant for the amount, which is well calculated and within limitation and the recovery be sent after calculating the amount appropriately.

The application under Section 482 Cr.P.C. is disposed of, accordingly.

Order Date :- 24.3.2023

Radhika