Dismissed

Om Prakash Awasthi v. State of U.P. and Another

Allahabad HC20 Sept 2018CRLP/4805/2002

Case brief

AI extract

What is this about?

The Court disposed of a revision petition challenging maintenance orders under Section 125 Cr.P.C. The trial and revisional courts found the wife to be the petitioner's wedded wife. The Court held that the concurrent findings were plausible and accepted that the wife's remarriage need not be examined at this stage; maintenance can be adjusted by the trial court later.

What did the court decide?

The writ petition is disposed of accordingly without interfering with the trial court's orders.

Om Prakash Awasthi Vs State of U.P. and Another — Maintenance and Alimony | Allahabad HC (2018)

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Court No. - 41

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Case :- CRIMINAL MISC. WRIT PETITION No. - 4805 of 2002 Petitioner :- Om Prakash Awasthi Respondent :- State Of U.P. & Another Counsel for Petitioner :- J.N. Yadav,Bijay Prakash Tiwari,Brijesh Prakash Tiwari,K.K.Tripathi,L.M. Singh,Sanjay Kumar,Sanjay Kumar Srivastava,Shikha Singh

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Counsel for Respondent :- Govt. Advocate,Sushil Dubey

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Hon'ble Aniruddha Singh,J.

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Restoration Application No. 17 of 2018

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Heard learned counsel for the applicant and learned AGA.

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This application has been filed to recall order dated 31.8.2018 whereby restoration application No. 24996 of 2015 was dismissed.

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Ground shown is sufficient. Order dated 31.8.2018 is hereby recalled and restoration application No. 24996 of 2015 is restored to its original number.

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Order Date :- 20.9.2018/P.P.

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Court No. - 41

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Case :- CRIMINAL MISC. WRIT PETITION No. - 4805 of 2002

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Petitioner :- Om Prakash Awasthi Respondent :- State Of U.P. & Another Counsel for Petitioner :- J.N. Yadav,Bijay Prakash Tiwari,Brijesh Prakash Tiwari,K.K.Tripathi,L.M. Singh,Sanjay Kumar,Sanjay Kumar Srivastava,Shikha Singh

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Counsel for Respondent :- Govt. Advocate,Sushil Dubey

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Hon'ble Aniruddha Singh,J.

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Delay condonation application No. 24999 of 2015

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Restoration Application No.24996 of 2015

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Heard learned counsel for the applicant and learned AGA.

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Delay in filing restoration application No. 24996 of 2015 is condoned and delay condonation application is allowed.

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The restoration application No. 24996 of 2015 has been filed to recall order dated 10.12.2014 whereby writ petition has been dismissed.

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Ground shown are sufficient. Order dated 10.12.2014 is hereby recalled and the writ petition is restored to its original number.

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Order Date :- 20.9.2018/P.P.

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Court No. - 41

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Case :- CRIMINAL MISC. WRIT PETITION No. - 4805 of 2002

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Counsel for Respondent :- Govt. Advocate,Sushil Dubey

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Hon'ble Aniruddha Singh,J.

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Heard Sri K.K. Triapthi, learned counsel for the petitioner and learned AGA for the State and perused the record.

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This petition has been preferred by Om Prakash Awasthi against State of U.P. and Smt. Minno Devi challenging order dated 22.6.1995, 30.1.2001 and 26.4.2002(annexure IV, V and VII to the writ petition).

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In Misc. Case No.459/12/90, Police Station Gurshahaiganj, District Farrukhabad, application of Minno Devi under Section 125 Cr.P.C. was allowed vide order dated 22.6.1995 and she was awarded Rs.700/- per month (Rs.500/-per month for her and Rs.200/- per month for her daughter) as maintenance from the date of application. Against that order application under section 126 Cr.P.C. was made which was dismissed as time barred vide order dated 30.1.2001. Revision filed against order dated 30.1.2001 was also dismissed. Hence this revision.

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Learned counsel for the petitioner submitted that order under section 125 Cr.P.C was passed ex-parte and Smt. Minno Devi was not wedded wife and daughter is also not of the petitioner; his real wife is Madhu and he has four children with Madhu. Minno Devi was also got married with one Mitthu Lal and the application under Section 125 Cr.P.C. was falsely moved.

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From perusal of record, it transpires that Minno Devi stated in her application that her marriage was solemnized with Om Prakash Awasthi on 17.6.1967 and Om Prakash Awasthi was Constable and had some relation with another lady namely Madhu and later on, he got himself married with Madhu. Hence Minno Devi started living separately alongwith her daughter due to misbehaviour of Om Prakash Awasthi.

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From perusal of record, it transpires that written statement was filed by the petitioner in Trial Court and order was passed under Section 125 Cr.P.C. on merit. Later on, revision was filed by the

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petitioner and that was also dismissed on merit. All issued have been discussed by both the Courts and it was held by the Court that Minno Devi was wedded wife of petitioner Om Prakash Awasthi and daughter was born out of their wedlock.

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Learned counsel for the petitioner raised two important points before this Court. (1) that Minno Devi was remarried with Mitthu Lal and after remarriage, she is not entitled for maintenance and (2) that daughter of Minno Devi is entitled for maintenance till she attains majority or till physical or mental abnormality or injury unable to maintain herself as per provision under Section 125 (1)(c) Cr.P.C. This issue has been considered by the Trial Court as well as Revisional Court.

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Both the Courts have given concurrent finding and view taken by both the Courts is plausible view. Hence no interference is called for in the orders impugned in the writ petition.

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It is made clear that if Trial Court finds that statement of petitioner is correct, then these issues have to be considered by the Court concerned at the time of payment. While deciding both these issues, order of this Court shall not affect the Trial Court.

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The writ petition is disposed of accordingly.

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Copy of this order shall be transmitted to the Court concerned immediately.

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Order Date :- 20.9.2018 P.P.

Om Prakash Awasthi v. State of U.P. and Another

Case brief

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Om Prakash Awasthi v. State of U.P. and Another

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