Madhya Pradesh High Court
Devashish Yadav vs Shrimati Gunjan Yadav on 24 April, 2021
Author: Anand Pathak
1
THE HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH : SHRI JUSTICE ANAND PATHAK
M.Cr.C. No. 41620 of 2019
Devashish Yadav
Vs.
Smt. Gunjan Yadav
Shri Harsh Sharma, learned counsel for the petitioner.
Shri M.M.Shrivastava, learned counsel for the respondents.
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ORDER
[Delivered on this 24th day of April, 2021]
With consent, heard finally.
The present petition is preferred under Section 482 of Cr.P.C.
for setting-aside order dated 22.07.2019 passed by Principal Judge,
Family Court, Gwalior, whereby respondents have been given an
opportunity to reply the application under Section 340 r/w Section
195 of Cr.P.C. preferred at the instance of petitioner.
2. It is the case of petitioner that an application has been filed by
the respondents/wife/son against petitioner (husband) under Section
125 Cr.P.C. with certain allegations and sought maintenance of
Rs.25,000/- per month for herself and Rs.10,000/- per month for her
son alongwith other incidental expenses.
3. It is a submission of counsel for the petitioner that respondent
No.1 has unnecessarily roped in the relatives and mother-in-law
(mother of petitioner) and she made false allegations against the
petitioner, therefore, an application has been preferred under
Section 340 Cr.P.C. at the instance of petitioner against the
respondent No.1 but vide impugned order dated 22-07-2019,
Presiding Officer (Additional Principal Judge, Family Court,
Gwalior) granted time to the respondent No.1 to file reply to such
application under Section 340 Cr.P.C. preferred by the petitioner
and such grant of time according to the petitioner is illegal
therefore, this petition has been filed.
4. Learned counsel for the petitioner raised the ground that
respondents No.1 and 2 have deposed on oath incorrect facts and
therefore, they have no right to be heard on merits. He relied upon
the judgment of Apex Court in the case of Kishore Samrite Vs.
State of U.P., (2013) 2 SCC 398 in support of his submission. It is
further submitted that respondent has committed the offence of
perjury and, therefore, she deserves to be punished in light of the
judgment of Apex Court in the case of Sawaran Singh Vs. State of
Punjab, (2000) 5 SCC 668 and she deserves punishment and is not
required in witness box even and she has no right to be heard.
5. Learned counsel for respondent opposed the prayer and
submitted that petitioner has filed this petition just to delay the
proceedings because matter is of maintenance and, therefore,
deserves to be decided at the earliest. It is further submitted that as
per the allegations of petitioner, alleged incorrect facts were earlier
placed by respondent No.1 in the proceeding under Section 9 of
Hindu Marriage Act vide Case No.517/18, which was being filed
by the petitioner before Family Court, Jaipur and in the said case,
these alleged submissions were made by the respondent No.1 which
according to petitioner are incorrect facts. Interestingly, said case
filed under Section 9 of Hindu Marriage Act got dismissed on
04.04.2019 in default. Therefore, case was not proceeded with any
evidence and since no false information has been provided by the
respondent No.1 in the present case, therefore, no such application
is maintainable at all.
6. It is further submitted by counsel for respondent that a
criminal case under Section 498-A of IPC and other related
provision is under investigation against the petitioner, therefore, as
a counter blast, petitioner is exerting pressure over the respondent
to delay her legitimate claims. Petitioner is not paying interim
maintenance to the respondents and they are finding hard to make
both their ends meet in absence of any maintenance amount. Arrest
warrant is also being issued against the petitioner on 22.07.2019 in
this regard. He prayed for dismissal for application.
7. Heard the counsel for the parties at length and perused the
documents appended thereto.
8. This is a case, where petitioner is taking exception to the
opportunity of filing reply to respondent which is being given by
the Family Court.
9. Perusal of respective pleadings and submissions, it appears
that case is of maintenance u/s 125 Cr.P.C and the application under
Section 340 Cr.P.C. appears to be preferred by the petitioner on the
basis of some alleged misstatement made by respondent No.1 in
some different proceeding purportedly under Section 9 of Hindu
Marriage Act for restitution of conjugal rights, which were earlier
filed by the petitioner but same got dismissed in default. Therefore,
at this juncture, on merits or otherwise, said application cannot be
looked into by this Court. Family Court has only granted time to the
respondents to file their response/documents qua application under
Section 340 Cr.P.C. No decision has been taken by the Trial Court.
Therefore, it amounts to preempting the controversy at such early
stage. On the basis of mere allegations, Family Court cannot arrive
to a conclusion. Respective pleadings are required.
10. So far as the ground raised by the respondent regarding non-
maintainability of application is concerned, while placing mandate
of Apex Court in the case of Iqbal Singh Marwah and Anr. Vs.
Meenakshi Marwah and Anr., AIR 2005 SC 2119 and Deepak
Chandrakant Jhaveri Vs. Johnson Dye Works (P) Ltd., (2020) 2
SCC (Cri.) 823 and raised ground for dismissed but at this juncture,
no such opinion deserves to be given in the interest of justice
because it is for the Family Court to decide after the respective
pleading and submissions of the parties.
12. Interestingly, it appears that matter is pending since 2019 and
although wrath of Covid-19 Pandemic was faced by the institution
but still a long period has passed and parties has nowhere referred
the fate and stage of proceeding pending before the Trial Court.
13. Cumulatively, case of the petitioner fails and is hereby
dismissed.
(Anand Pathak)
Judge
Ashish*
