Dismissed

Shiv Nath Pandey v. State of U.P and Another

Allahabad HC7 Sept 2021A482/5189/2021

Case brief

AI extract

What is this about?

Application under Sections 127 and 126(2) Cr.P.C. to quash an enhancement of maintenance allowance was dismissed. The court rejected the applicant's claim due to his failure to appear, lack of explanation for procedural delays, and absence of evidence to justify the increased maintenance.

What did the court decide?

Application under Sections 127 and 126(2) Cr.P.C. dismissed; no indulgence shown to the applicant.

Shiv Nath Pandey Vs State of U.P and Another — Maintenance and Alimony | Allahabad HC (2021)

¶1

Court No. - 49 Case :- APPLICATION U/S 482 No. - 5189 of 2021 Applicant :- Shiv Nath Pandey Opposite Party :- State Of U.P And Another Counsel for Applicant :- Kamlesh Kumar Tiwari Counsel for Opposite Party :- G.A.

¶2

Hon'ble Vivek Agarwal,J.

¶3

Sri Ishwar Kumar Upadhyay, learned counsel for the applicant.

¶4

This application has been filed by the husband being aggrieved of order dated 3.9.2019 passed by learned Principal Judge Family Court, Ballia, under section 127 Cr.P.C. (Smt. Punita Pandey vs. Shiv Nath Pandey) as well as order dated 26.11.2020 passed by learned Principle Judge Family Court, Ballia, under Section 126(2) Cr.P.C. (Shiv Nath Pandey vs. Smt. Punita Pandey) in maintenance Case No. 597 of 2003, Police Stations Sukhpur, District Ballia.

¶5

Learned counsel for the applicant submits that vide order dated 3.8.2003 learned First Additional Civil Judge Junior Division in Case No. 597 of 2003 had awarded a maintenance @ Rs.800 per month in a proceedings initiated under Section 125 Cr.P.C. It is submitted that thereafter wife of the present applicant had moved an application for enforcemnt under Section 128 Cr.P.C.

¶6

Thereafter she filed Misc. Case No. 611 of 2014 under section 127 Cr.P.C. for enhancement of maintenance allowance on the ground that when earlier order was passed granting maintenance @ Rs.800 per month, at that time opposite partyShiv Nath Pandey had canvassed himself to be a student and had informed the court that he is dependent on his father but thereafter situations have changed. Father of the applicant died leaving half of the share in his property in favour of the applicant- Shiv Nath Pandey besides this it was alleged that he has income of Rs.30,000/- per month from computer related work and agricultural operations.

¶7

Notices were issued to the present applicant. He appeared before the court and filed his objections dated 24.6.2015. Thereafter evidence of the applicant was recorded but opposite party, i.e. the present applicant, did not appear to cross examine the complainant and therefore on 20.09.2015 right to cross examine was closed, thereafter, applicant had moved an application on 20.09.2018 seeking recall of the order proceedings ex party against the applicant but he did not argue on said application and then again absented himself on 9.8.2019

¶8

when recall application was dismissed and application under Section 127(1) for alteration of allowance was allowed and allowance was enhanced to Rs.4,000/- per month.

¶9

Being aggrieved of this order, applicant had filed an application for setting aside ex parte order dated 03.09.2019, under Section 126(2) Cr.P.C., which has been rejected vide order dated 26.11.2020 placing reliance on the judgment of Allahabad High Court in case of Ram Achal Singh vs. Smt. Ram Rahim, (2015) (91) ACC 174. wherein Allahabad High Court has held that if sufficient opportunity has been given to the opposite party in a case under Section 127 and thereafter order of alteration of allowance is passed then if recall application is filed after much delay, then if the courts find that explanation for delay is not just and proper, then it can reject the application for recall.

¶10

Learned counsel for the applicant vehementally submits that five times rise in the amount of maintenance in an application under Section 127 Cr.P.C. is arbitrary and disproportionate. However learned counsel for the applicant could not explain any of the circumstances as have been noted in the impugned order namely bequeathing of half of the property of his father and also allegation of earning from computer job etc. He could not also explain change in circumstances when earlier order was passed in 2003 inasmuch as at that point of time applicant was a student whereas now he is a well settled and employed person having his own source of income. Besides this, in my opinion, applicant could also not answer query of this Court in regard to rate of inflation and consequent adjustment in the scale of cost of living during 17 years when earlier order was passed.

¶11

Applicant in place of giving specific answers to the query of this Court choose to give evasive reply as to his employment and source of income and, therefore, in view of such facts when there is no cogent evidence on record coupled with the fact that there is no justification given by the applicant that why he had not pursued his application, which was filed by him for recall of the order dated 20.9.2018, this Court is of the opinion that applicant once deliberately choose not to appear before the court below and lead evidence or cross examine his wife, no indulgence can be shown in the matter in favour of the applicant and, therefore, application deserves to be dismissed and is dismissed .

¶12

Order Date :- 7.9.2021 Ravi/-

Shiv Nath Pandey v. State of U.P and Another

Case brief

What is this about?

What did the court decide?

Shiv Nath Pandey v. State of U.P and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ranjana Vs State of Up and Another

Vandana Vs State of Up and Another

Abhishek Kumar Verma and Another Vs State of U.P. and Another

Shailendra Singh and 3 Others Vs State of U.P. and Another

Suraj Pal Singh Vs State of U.P. and Another

Veernam @ Vijay and 4 Others Vs State of U.P. and Another