Uttarakhand High Court
Sunil Ghildiyal vs State Of Uttarakhand on 2 November, 2022
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 657 of 2022
Sunil Ghildiyal ...........Revisionist
Vs.
State of Uttarakhand ..... Respondent
Mr. Abhishek Verma, Advocate for the revisionist.
Mr. V.S. Rathore, AGA for the State of Uttarakhand.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to the
orders dated 13.07.2022 and 06.09.2022, passed in
Misc. Criminal Case No.86 of 2021, Smt. Antriksha
Ghildiyal vs. Sunil Ghildiyal, by the court of Principal
Judge, Family Court, Dehradun (for short, "the recovery
case"). By the impugned orders, recovery warrants for
recovery of `6,44,000/- have been issued against the
revisionist.
2. Heard learned counsel for the parties and
perused the record.
3. In order to appreciate the controversy,
briefly the facts needs a narration.
(i) The respondent no.2, who is wife of the
revisionist, filed an application seeking
maintenance from the revisionist for herself
and her son, which was registered as Case
No.218 of 2007, Smt. Antriksha Ghildiyal and
another vs. Sunil Ghildiyal in the court of
Principal Judge, Family Court, Dehradun (for
short, "the case").
(ii) The case was decided on 02.12.2008 and the
maintenance was granted to the child of the
parties, but the respondent no.2 was denied
maintenance.
(iii) The order dated 02.12.2008, passed in the
case was challenged by the respondent no.2 in
Criminal Revision No.38 of 2009 (for short,
"the revision") before this Court. The
revisionist was served in that revision, but he
did not appear. The revision was decided on
20.02.2020 and the revisionist, in the instant
case, has been directed to pay `4,000/- per
month to the respondent no.2. Accordingly,
the order dated 02.12.2008, passed in the
case has been modified.
(iv) In between the respondent no.2 also filed an
application under Section 127 of the Code of
Criminal Procedure, 1973 (for short, "the
Code") for enhancement of maintenance
granted on 02.12.2008 in the case. Based on
this application under Section 127 of the
Code, the proceedings of the Misc. Case No.
170 of 2011 was instituted in the court of
Principal Judge, Family Court, Dehradun,
which was decided ex parte on 20.01.2014
and the revisionist was directed to pay
`6,000/- per month to his son.
(v) After the order of this Court dated
20.02.2020, passed in the revision, the
respondent no.2 moved an application for
recovery of maintenance, which is basis of the
recovery case. In the recovery case, the
revisionist appeared and filed objections. On
08.10.2021, the court directed the respondent
no.2 to file affidavit with regard to her liability
and assets. It appears that in that recovery
case subsequently, the revisionist did not
appear and on 13.07.2022 and on
06.09.2022, the court directed issuance of
recovery warrants. These orders are
impugned.
4. Learned counsel for the revisionist would
submit that the recovery of arrears for more than one
year cannot be made. He would also raise the following
points also in his submissions:-
(i) The respondent no.2 has been staying
separately without any sufficient cause.
(ii) In the recovery case, the court on 08.10.2021
had directed the respondent no.2 to file the
affidavit of his assets and liabilities, but it has
not been filed.
(iii) Learned counsel for the revisionist would
submit that efforts for mediation could be
useful in this case.
5. The Court wanted to know, as to what was
the objections filed by the revisionist in the recovery
case? Reference has been made to Annexure No.6 to the
revision.
6. Learned counsel for the revisionist would
submit that, in fact, the amount of maintenance which
was granted to the child of the parties on 02.12.2008
was subsequently enhanced to `6,000/-, but this fact
was concealed by the respondent no.2 in the revision
before this Court. This was one of the objections.
7. The Court wanted to know, is there any
other objection to the recovery proceedings? The reply is
that without any cogent reason the respondent no.2 is
staying separate and at present, it is argued that the
revisionist is jobless.
8. Initially on 02.12.2008, the respondent
no.2, the wife was denied maintenance, but on
20.02.2020, the Court allowed the revision and modified
the order dated 02.12.2008, passed in the case. The
Court directed the revisionist to pay `4,000/- per month
to the respondent no.2, as well. The period of one year
may be counted from this date. Prior to it, in fact, the
respondent no.2 did not have any occasion to seek any
recovery. It is within a year from that date.
9. In so far as the reasons for living separate
is concerned, they are the matters, which definitely
could have been dealt with while awarding maintenance
to the wife.
10. The objections that the respondent no.2 did
not reveal that the child is being paid maintenance by
the revisionist has no bearing in this case. It is no
objection at all. The Court has directed the revisionist to
pay maintenance to the respondent no.2, his wife. What
is the amount of maintenance the revisionist is paying
to his son has nothing to do with it. It may at the most
have some collateral assistance. But, non-disclosure of
the amount which the child has been receiving is not a
ground for stopping the recovery process.
11. It is true that in the recovery case on
08.10.2021, the court directed the respondent no.2 to
file an affidavit in support of the assets and liabilities,
but such affidavit is not required at all. Even despite
that order, the court had issued recovery warrants.
12. It is true that in the recovery proceedings
the revisionist had filed his objections, but on
subsequent dates, he did not appear. Even otherwise,
this Court has considered the objections, they have no
merits for acceptance.
13. In view of what is stated in the foregoing
paragraphs, this Court is of the view that there is no
reason to make any interference in the impugned
orders. Accordingly, the revision deserves to be
dismissed.
14. The revision is dismissed.
(Ravindra Maithani, J.)
02.11.2022
Sanjay
