Allahabad High Court
Moharram Ali vs State Of U.P. And Ors. on 2 January, 2024
Author: Renu Agarwal
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:273
Court No. - 29
Case :- CRIMINAL REVISION No. - 248 of 2015
Revisionist :- Moharram Ali
Opposite Party :- State Of U.P. And Ors.
Counsel for Revisionist :- Surendra Kumar,Nisha Srivastava
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Mrs. Renu Agarwal,J.
1. None appear on behalf of the revisionist to press this revision. Learned AGA for the State is present.
2. Present revision under section 19 of Family Court Act read with section 397 Cr.P.C. has been filed on behalf of the revisionist-Moharram Ali against opposite party nos.2 & 3, who are the wife and minor son of the revisionist, challenging the order dated 31.01.2015 passed in Case No.106 of 2009(Maherunnisha and other Vs. Moharram Ali), by which revisionist was directed to pay Rs.2000/- per month to the opposite party no.1 and Rs.1000/- per month to opposite party no.2-Amir(minor son of revisionist).
3. It is submitted by learned counsel for the revisionist that revisionist has filed petition for restoration of conjugal right being petition No.314 of 2009(Moharram Ali Vs.Maherunnisha) against opposite party no.2, which was allowed ex-parte by the Principal Judge, Family Court, Faizabad, vide order dated 25.10.2013 and directed the opposite party no.2 to reside with the revisionist and restored conjugal right with the revisionist. It is further submitted that opposite party no.2 has not complied the order dated 25.10.2013. The impugned order dated 31.01.2015 has been passed by the Principal Judge, Family Court Barabanki, on the petition no.106 of 2009, under section 125 Cr.P.C. moved by opposite party nos.2 and 3 against the revisionist.
4. As per office report dated 26.11.2015 notice has been personally served upon opposite party nos.2 and 3, however, there is no representation on behalf of the opposite party nos.2 and 3. It also appears from perusal of order sheet that on 19.05.2023 none appear on behalf of the revisionist.
5. From perusal of record it transpires that order dated 25.10.2023 was an ex-parte order. Further in order dated 31.10.2015 it is observed that opposite party no.2 has no knowledge about the order dated 25.10.2023.
6. Section 36 of The Family Court Rules 2006 provides as under:-
"36. An order passed under Chapter IX of the Code of Criminal Procedure for maintenance allowance may be executed by the Court by attachment of salary as provided in section 60 and order 21 of the Code of Civil Procedure in addition to the mode of recovery provided in sub- section (3) of Section 125 of the said Code."
7. Order 21 Rule 31 of Code of Civil Procedure reads as under:-
(1) Where the decree is for any specific movable, or for any share in a specific movable, it may be executed by the seizure, if practicable, of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in the civil prison of the judgment-debtor, or by the attachment of his property, or by both.
(2) Where any attachment under sub-rule (1) has remained in force for three months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold, and out of the proceeds the Court may award to the decree holder, in cases where any amount has been fixed by the decree to be paid as an alternative to delivery of movable property, such amount, and in other cases, such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.
(3) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of three months from the date of the attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease.
8. Order 21 Rule 32 CPC reads as under:
"32. Decree for specific performance for restitution of conjugal rights, or for an injunction.- (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced 1(in the case of decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction) by his detention in the civil prison, or by the attachment of his property, or by both.
9. Order 21 Rule 33 reads as under:-
(1) Notwithstanding anything in rule 32, the Court, either at the time of passing a decree against a husband for the restitution of conjugal rights or at any time afterwards, may order that the decree shall be executed in the manner provided in this rule.
(2) Where the Court has made an order under sub-rule (1), it may order that, in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.
(3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and again review the same, either wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money.
10. Perusal of Order 21 Rules 31, 32 and 33 of the Act it is evident that decree of conjugal right can be executed against the husband and he may be directed to deposit the maintenance to his wife. The wife cannot be compelled to remain with husband against her wish and she cannot be directed to deposit the amount towards maintenance to her husband.
11. So far as issuing writ of mandamus is concerned the writ of mandamus can be issued only by the court having jurisdiction to issue writ. Writ cannot be sought to be issued by way of revision. Revisionist has not filed any execution application for execution of judgment dated 25.10.2013 in the court of competent jurisdiction. Hence, there appears no ground to to issue writ of mandamus against opposite party no.2. There is no illegality, abnormality of miscarriage of justice in the impugned order.
12. The revision has no force and is liable to be dismissed.
13. Accordingly the revision is dismissed.
14. Let the copy of judgment be sent to the court concerned for compliance and necessary action.
(Renu Agarwal,J.)
Order Date :- 2.1.2024/VKG
