Uttarakhand High Court
'Priyanka vs Pankaj Thapliyal' on 8 January, 2020
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
CRLR No. 9 of 2020 With CLMA No. 92/2020 (Stay application) Hon'ble Sharad Kumar Sharma, J.
Mr. S.K. Posti, Advocate for the revisionist.
Mr. P.S. Bohra, A.G.A. along with Mr. Siddhartha Bisht, Brief Holder for the State of Uttarakhand.
The challenge in the present criminal revision is to an order passed in a proceeding under sub-section (2) of Section 125 of Cr.P.C., for determination of the interim maintenance as claimed by the respondent/wife. In the principal proceedings pending under Section 125 Cr.P.C. for determination of maintenance the wife had filed an application under sub-section (2) of Section 125 of Cr.P.C. for grant of interim maintenance during the pendency of the principal proceeding of Matrimonial Case No. 2 of 2019 'Priyanka vs. Pankaj Thapliyal', which has been registered before the Family Court, Kotdwar, Pauri Garhwal.
The revisionist before this Court has filed his objection/written statement to the main application under Section 125 of Cr.P.C., but there had been no objection filed by him to the application under Section 125 (2) of Cr.P.C. for determination of interim maintenance.
The argument of the learned counsel for the revisionist is that in view of his objection taken in the written statement/objection filed to the principal application under Section 125 Cr.P.C., wherein, he has taken a plea that the wife has voluntarily deserted him and, hence, the bar in determination of the interim maintenance under sub-section (4) of Section 125 would come into play while considering the application for determining interim maintenance.
This Court at this stage is not in agreement with the argument extended by the learned counsel for the revisionist, the reason being, the restriction imposed by the sub-section (4) of Section 125 of Cr.P.C. contemplates two independent stages of proceedings, i.e. when Section 125 of Cr.P.C. is considered: (i) the stage at which the application under Section 125 (2) for interim maintenance is considered, and (ii) the stage when the principal application under Section 125 Cr.P.C. is itself considered for grant of maintenance.
The plea of desertion, which has been taken by the learned counsel for the revisionist at the stage of consideration of an application under Section 125 of Cr.P.C. is altogether an independent interlocutory proceeding in the principal proceeding under Section 125 Cr.P.C. The finding, which has been recorded in the impugned order, is that the revisionist has not filed any objection to the application under Section 125 (2) of Cr.P.C. filed by the respondent (wife) for determination of interim maintenance.
Consequently, his argument to the effect that the plea of desertion has not been considered by the Family Court while passing the impugned order is contrary to the finding, which has been recorded otherwise, because the consideration of plea for determination at an interim stage would have been only when the revisionist has raised an objection to the said effect when the application was considered by filing an independent objection.
In such an eventuality, this Court is not in agreement with the argument as extended by the learned senior counsel for the revisionist. Consequently, I decline to exercise my revisional power under Section 397 of Cr.P.C. and consequent thereto, the impugned order dated 26.11.2019 is hereby confirmed.
However, dismissal of this criminal revision would carry a rider by way of a request to the Family Court that the Family Court will make all sincere efforts to decide the principal application under Section 125 Cr.P.C. itself within a period of three months from the date of production of certified copy of this order.
Subject to the above observation and exception, the revision lacks merit, hence, the same stands dismissed.
(Sharad Kumar Sharma, J.) 08.01.2020 Pooja