Dismissed

Shamshad v. State of U.P.and 2 Others

Allahabad HC21 Oct 2022A482/18227/2022

Case brief

AI extract

What is this about?

This judgment dismisses an application under Section 126(2) Cr.P.C. seeking to recall an ex parte maintenance order due to unexplained delay of over two-and-a-half years. The court held the applicant failed to justify the delay and noted no merit challenge was raised against the original order.

What did the court decide?

The recall application under Section 126(2) Cr.P.C. was dismissed due to unexplained delay of over two and a half years.

Shamshad Vs State of U.P.and 2 Others — Service and Employment | Allahabad HC (2022)

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Court No. - 84

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Case :- APPLICATION U/S 482 No. - 18227 of 2022

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Applicant :- Shamshad Opposite Party :- State Of U.P.And 2 Others Counsel for Applicant :- Sanjay Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Shyam Shamshery,J.

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Opposite Party No. 2, wife of applicant, has filed an application under Section 125 Cr.P.C. in the year 2009 wherein an order was passed on 12.12.2011 granting interim maintenance. Applicant, husband of Opposite Party No. 2, though paid interim maintenance, however, it appears that there were some default also. Applicant has filed reply to the application and it appears that Opposite Party No. 2 was cross-examined also. However, when applicant repeatedly failed to appear, the case was proceeded ex parte vide order dated 30.08.2016 and thereafter on 31.05.2017 final order was passed with the direction for applicant to pay Rs. 3000/- per month to Opposite Party No. 2 (wife) and Rs. 2000/- per month to his on, till he became adult.

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Learned counsel for applicant submits that an application under Section 126(2) Cr.P.C. to recall the ex parte order dated 31.05.2017 was filed on 23.10.2019, i.e., after about tow and half years, taking a ground that applicant came to know about order dated 31.05.2017 only in the month of October, 2019. In the application there is no averment, whether he has taken any steps to get status of case from his Advocate between 31.05.2017 to 23.10.2019, i.e., for about two and half years. This application was dismissed by impugned order dated 21.04.2022. Trial Court has recorded a finding that there was no explanation for applicant’s non appearance as well as to condone the delay of about two and half years in filing recall application. Learned counsel submits that in the interest of justice applicant may be given a chance to be heard by Trial Court so that his version be considered and fresh order be passed. He has also pointed out that his son has already attained majority, therefore, he is not entitled for maintenance.

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I have perused the application filed under Section 126(2) Cr.P.C. as well as

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the impugned order dated 21.04.2022. As observed above, there was a delay of about two and half years to challenge the ex parte order dated 31.05.2017. Impugned order also notes that earlier an application under Section 126(2) Cr.P.C. was filed on 28.06.2017 but the same was dismissed in default on 01.10.2019. However, the fact remains that there is absolutely no explanation for delay of almost two and half years in filing application under Section 126(2) Cr.P.C.

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Considering that Section 125 Cr.P.C. is a beneficial provision, Supreme Court in Anju Garg and another vs. Deepak Kumar Garg, 2022 SCC OnLine SC 1314 held that, “it is the sacrosanct duty of the husband to provide financial support to the wife and to the minor children. The husband is required to earn money even by physical labour, if he is an able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute.”

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In view of above discussion and the facts of present case, in my view, applicant has absolutely failed to explain the reasons for filing application under Section 126(2) Cr.P.C. after about two and half years. Therefore, I do not find any error in the impugned order. However, if there is change in circumstances, i.e., son of applicant has attained majority, he has liberty to file application under Section 127 Cr.P.C. to brought on record this fact. It is also noticed that applicant has not challenge the ex parte order dated 31.05.2017 on merit till date.

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The application is accordingly dismissed.

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Order Date :- 21.10.2022/AK (Sl. No. 6 out of 395 fresh cases)

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Digitally signed by AWADESH KUMAR Date: 2022.10.21 13:52:07 IST Reason: Location: High Court of Judicature at Allahabad

Shamshad v. State of U.P.and 2 Others

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What is this about?

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Shamshad v. State of U.P.and 2 Others

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