Allahabad High Court
Akash Yadav vs State Of U.P. And Another on 23 January, 2020
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 76 Case :- APPLICATION U/S 482 No. - 46874 of 2019 Applicant :- Akash Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Hitesh Pachori Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Hitesh Pachori, learned counsel for the applicant and the learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed to quash the order dated 22nd October, 2019 passed by the Chief Judicial Magistrate, Etah in Complaint Case No. 458 of 2016 (Smt. Reka @ Rashmi Yadav Vs. Akash Yadav & Others), under Section 12 of the Protection of Women from Domestic Violence Act, 2005, Police Station-Aliganj, District-Etah.
Brief facts, which are stated in the complaint made by opposite party no.2 under Section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Act, 2005"), are as follows:
The marriage of applicant was solemnised with opposite party no.2 on 29th April, 2016 in accordance with the Hindu Rites and Customs. From the aforesaid wedlock, one female child, namely, Km. Nitiya was born. In the said marriage, the father of opposite party no.2 spent to his maximum capacity and had given Rs. 3 lacs cash, clothes, jewellery and other household goods on the demand of applicant's family. For the said marriage, the father of opposite party no.2 had also executed a sale deed in favour of the applicant qua a plot. The father of opposite party no.2 had spent about 16 lacs in the said marriage. However, the in-laws' of opposite party no.2 were not happy with the aforesaid dowry and after some time, they demanded Rs. 10 lacs from opposite party no.2 as additional dowry, for which they also used to torture, harass and beat her in order exert pressure upon her so that the aforesaid additional demand of dowry may be fulfilled. When the opposite party no.2, after consulting her father, told her in-laws' including the applicant that her father is not in a position to fulfil the aforesaid additional demand of dowry, the applicant and his family members after abusing and beating, expelled opposite party no.2 along with her 15 months' old daughter from their house and threatened that if she comes to their house, they would kill her. After coming to her parental house, she has lodged a first information report on 12th November, 2015 against the applicant and three others which was registered as Case Crime No. 750 of 2015, under Sections 498-A, 323 I.P.C. and Sections 3/4 D.P. Act. Opposite party no.2 has also made a complaint under Section 12 of Act, 2005 against the applicant and the same has been registered as Complaint Case No. 458 of 2016 (Smt. Reka @ Rashmi Yadav Vs. Akash Yadav & Others), under Section 12 of the Protection of Women from Domestic Violence Act, 2005, Police Station-Aliganj, District-Etah.
From the record, it appears that along with the complaint case under Section 12 of Act, 2005, opposite party no.2 has also moved an application for interim maintenance allowance under Section 27 of Act, 2005 being Paper no. 10A. The Chief Judicial Magistrate, Etah vide order dated 13th December, 2017 has allowed Paper no.10A and directed the applicant to pay Rs.5,000/- per month to his wife i.e. opposite party no.2 and Rs. 2,500/- per month to his daughter, namely, Kumari Nitya Yadav as interim allowance from the date of order. Feeling aggrieved by the said order, the applicant filed Criminal Appeal No. 01 of 2018, whereas opposite party no.2 filed Criminal Appeal No. 18 of 2018 and both the criminal appeals have been rejected by the appellate court vide order dated 15th June, 2018. A case under Section 125 Cr.P.C. has also been filed by the applicant which has been registered as Case No. 02 of 2016, wherein the Judge, Family court, Etah vide order dated 23rd March, 2018, while considering the interim maintenance allowance application of opposite party no.2, has directed the applicant to pay Rs. 6,000/- per month to his wife i.e. opposite party no.2 and Rs.3,000/- per month to his daughter, namely, Kumari Nitya. Being aggrieved by the said order, applicant filed Criminal Misc. Application under Section 482 Cr.P.C. No. 18140 of 2018. The said application has been disposed of by this Court vide order dated 22nd May, 2018 by requiring the Judge, Family Court to decide the case no. 02 of 2016 finally filed by opposite party no.2 under Section 125 Cr.P.C. The Judge, Family Court , Etah vide judgment and order dated 3rd October, 2018 has allowed the case of opposite party no.2 and directed the applicant to pay Rs. 10,000/- per month to opposite party no.2 and Rs. 5,000/- per month to his daughter, Kumari Nitya as maintenance allowance. Being aggrieved, applicant filed Criminal Misc. Application Under Section 482 No. 44714 of 2018, wherein on 18th December, 2018 an interim order has been granted in favour of the applicant by directing him to pay Rs. 5,000/- per month to opposite party no.2 and Rs.5,000/- per month to his daughter, namely, Kumari Nitya as maintenance allowance. Opposite party no.2 had filed an application being Paper No. 26-B in Case No. 02 of 2016 under Section 125 Cr.P.C. for recovery of maintenance allowance as granted vide order dated 13th December, 2017 to which the reply was also filed by opposite party no.2. An application has also been filed by the applicant being Paper No.-30-B in Case No. 458 of 2016 against the maintenance awarded to opposite party no.2 under Section 125 Cr.P.C. and under Section 20 of Act, 2005. In the said application, the applicant has also prayed for clubbing the maintenance allowance as awarded in the proceedings under Section 125 Cr.P.C. and Section 12 of Act, 2005. The applicant has also filed an application being Paper No. 31-B in Case no. 458 of 2016 against the application made by opposite party no.2 for recovery of maintenance allowance.
The Chief Judicial Magistrate, Etah vide order dated 22nd October, 2019 have decided both the applications of opposite party no.2 and the applicant being Paper 26-B and Paper No.31-B by means of a common order dated 22nd October, 2019 and directed the applicant to pay the arrears of maintenance allowance to opposite party no.2 and his daughter as awarded under order dated 13th December, 2017, failing which recovery warrant or an order of deduction from his salary shall be passed. The Chief Judicial Magistrate has also fixed 18th December, 2019 for disposal of application filed by the applicant being Paper No. 30-B. It is against this order that the present application has been filed.
Learned counsel for the applicant submits that before deciding the application made by the applicant being Paper No.30-B, the Chief Judicial Magistrate has only decided the application made by opposite party no.2 and has only directed the applicant to pay the arrears of maintenance allowance to opposite party no.2 and his daughter without considering the material and evidence available on record, which is wholly illegal. The applicant is a Constable in U.P. Police and is drawing salary of Rs. 35,000/- per month from which he is depositing house loan instalment. He has also liability to maintain his old and sick parents. He has no other source of income except his salary. Learned counsel for the applicant further submits that he has made all efforts to reconcile the dispute and he always wants to maintain his wife and daughter but she being free lady does not want to live with his parents. The Chief Judicial Magistrate without considering the objection raised by the applicant and overlooking to the amount of maintenance allowance, which is being paid by the applicant, has passed the impugned order. He, therefore, submits that the impugned order is liable to be rejected.
Per contra, learned A.G.A. has opposed the submissions made by the learned counsel for the applicant by stating that the Chief Judicial Magistrate has rightly passed the impugned order directing the applicant to pay all the arrears of the amount of the maintenance allowance as awarded under the order dated 13th December, 2017, as nothing has been paid by the applicant in compliance of the same. He, therefore, submits that the impugned order dos not warrant any interference by this Court.
I have considered the submissions made by the learned counsel for the parties and gone through the records of the present application. From the order impugned, this Court finds that the Chief Judicial Magistrate has only directed the applicant to comply with the order dated 13th December, 2017, which have been affirmed by the appellate court vide order dated 15th June, 2018 as the same has not been challenged any further. Therefore, this Court finds no illegality in the order passed by the Chief Judicial Magistrate.
However, in the facts and circumstances of the case, this Court disposes of the present application by directing the Chief Judicial Magistrate, Etah to consider and decide the application, which had been filed by the applicant being Paper No.-30-B in Case No. 458 of 2016, in accordance with law by means of a reasoned and speaking order, preferably within one month from the date of production of a certified copy of this order.
(Manju Rani Chauhan, J.) Order Date :- 23.1.2020 Sushil/-