Allahabad High Court
Arif And 7 Others vs State Of U.P. And 4 Others on 16 May, 2023
Bench: Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:105780
Court No. - 72
Case :- APPLICATION U/S 482 No. - 25268 of 2022
Applicant :- Arif And 7 Others
Opposite Party :- State Of U.P. And 4 Others
Counsel for Applicant :- Mohammad Zakir,Satya Prakash Singh
Counsel for Opposite Party :- G.A.,Amir Khan
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the applicants, learned counsel for opp. party no. 2 and perused the record.
By moving this application, the prayer is made to quash the order dated 20.7.2022 passed in Cr. Appeal No. 33 of 2020, Smt. Madeena and others Vs. State of U.P. and others relating to Misc. Case No. 55 of 2016, Arif and others Vs. Smt.Madeena and others, under section 12, 18, 19, 20, 22 of Domestic Violence and Protection of Women Act, 2005, police station Anupshahr District Bulandshahr, whereby the Additional Sessions Judge/FTC court no. 2, Bulandshahr allowed the appeal of opp.party no. 2 and set aside the order dated 20.10.2020 passed by the trial court. Apart from permitting the opp. parties to live in one room, in the house of the applicants, the court awarded maintenance to the tune of Rs. 5000/- and Rs. 3000/-, the total amount Rs. 8000/- per month from the date of the order to opp. party nos. 2 to 5. Rs. one lac was also awarded as compensation as one time payment to opp. party nos. 2 to 5.
The only argument of the learned counsel for the applicants is that the judgment dated 20.7.2022 is having overlapping effect. Admittedly, by the order dated 10.3.2017 in proceedings under section 125 Cr.P.C., the trial court awarded Rs. 4500/- per month to the wife and Rs. 1500/- each to two minor daughters of opp. party no. 2, thus the total amount Rs. 7500/- per month as maintenance from the husband of opp.party no. 2 and later on, on the birth of third daughter on the application under section 125 Cr.P.C. on behalf of newly born child a further maintenance amount of Rs. 4000/- was also awarded to her. Thus, on the basis of the application under section 125 Cr.P.C. the total maintenance amount of Rs. 11,500/- per month is said to have been awarded by the trial court to opp.party nos. 2 to 5. It is argued that by the impugned order dated 20.7.2022 the Sessions Court/ appellate court has further awarded Rs. 5000/- as maintenance and Rs. 3000/- as medical and other expenses and thus the total amount of Rs. 8000/- per month to the wife and three minor daughters of the applicants. It is further argued that as per this ex parte judgment dated 20.7.2022 though the judgments passed on applications under section 125 Cr.P.C. were produced before the appellate court but the court did not discuss those judgments or the amount awarded earlier to opp. party nos. 2 to 5 in judgment dated 20.7.2022 and thus, the amount of Rs. 8000/- per month was further awarded vide order dated 20.7.2022 to opp. party nos. 2 to 5 while it was to be merged into the amount of maintenance previously awarded under section 125 Cr.P.C. Learned counsel for the applicants relied upon the paragraph no. 128 of the judgment in Rajnesh Vs. Neha and another, (2021) 2 Supreme Court Cases 324 whereby the apex court issued directions that the subsequent court would consider (i) an adjustment or set off of the amount awarded in the previous proceeding while determining whether any further amount is to be awarded in the subsequent proceeding, (ii) It is mandatory for the applicant to disclose the previous proceedings and the orders passed therein, in the subsequent proceeding, (iii) If the order passed in the previous proceeding requires any modification or variation, it would be required to be done in the same proceeding. Thus the prayer was made accordingly.
Learned counsel for opp. party nos. 2 to 5 opposed the prayer and submitted that in the judgment on the application u/s 125 Cr.P.C. of the minor daughter, it has come that applicant Arif was getting salary of Rs. 59,800/- per month in the year 2019 and it is submitted that this amount must have increased by now and applicant no. 1 can easily pay Rs. 11500/- awarded vide order on the applications under section 125 Cr.P.C. and Rs. 8000/- per month as per the ex parte judgment dated 20.7.2022.
It is admitted fact that opp. party no. 2 is the wife of applicant no. 1 and opp. party nos. 3, 4 and 5 are the minor daughters of applicant no. 1 and opp. party no. 2, though divorce is said to have taken place between applicant no. 1 and opp. party no. 2 but it is not the subject matter of this application here. It is the admitted fact that as per the judgment dated 20.7.2022, the judgments on the applications under section 125 Cr.P.C. were placed before the court but it is the allegation that the trial court did not discuss the same in the judgment dated 20.7.2022 and thus, the prayer is made to merge this amount of Rs. 8000/- in the amount of Rs. 11500/- per month awarded earlier vide judgment under section 125 Cr.P.C.
If we go through the judgment dated 20.7.2022 on the last page, the court has specifically mentioned that if opp. party no. 2 Smt.Madeena and her three daughters Ujma, Rahnuma and Huma the opp. party nos. 2 to 5 in the present proceedings, are getting maintenance amount in any other proceedings that amount shall be considered in addition to the amount granted vide order dated 20.7.2022. Thus, it is the clear finding of the trial court that the amount awarded vide order dated 20.7.2022 is in addition to any other amount being awarded to the present opp. party nos. 2 to 5. Thus the trial court is found to follow the principle laid down by the Apex Court in judgment Rajnesh Vs. Neha (supra). This leaves no ground of the doubt that order dated 20.7.2022 is not an overlapping order. Admittedly, no application has been moved by the applicants to set aside the ex parte judgment dated 20.7.2022.
I find no force in the arguments advanced by the learned counsel for the applicants. The application has no merits and is liable to be dismissed.
It is hereby dismissed.
Order Date :- 16.5.2023
Gss
