The Court dismissed an application under Section 482 Cr.P.C. seeking to quash maintenance proceedings. It found the applicant failed to adduce documentary evidence before the lower court and withdrew the prayer for withdrawal, resulting in dismissal.
Application under Section 482 Cr.P.C. is dismissed.
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Court No. - 92
Case :- APPLICATION U/S 482 No. - 29756 of 2021
Applicant :- Kunvar Ji Patel Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Rajesh Kumar Counsel for Opposite Party :- G.A.
Hon'ble Manish Kumar,J.
Heard learned counsel for the parties and perused the record.
The present petition has been filed for quashing the entire proceedings of Case No.231 of 2005, under Section 125 Cr.P.C., Police Station Lanka, District VAranasi, pending in the court of Principal Judge, Family Court, Varanasi and also to quash the order dated 13.01.2015 passed by Principal Judge, Family Court, Varanasi.
Learned counsel for the applicant has submitted that the Respondent No.2 (wife of the applicant) filed a case under Section 125 Cr.P.C. for payment of maintenance for herself and her minor son born out of wedlock with the applicant, for which the court below has passed an order dated 13.01.2015 directing he applicant to pay Rs.15,00/- per month to the Respondent No.2 and Rs.1000/- per month to Respondent No.3 (minor son) till he attains the age of majority. The applicant has taken a plea that Respondent No.2 has solemnized the second marriage on 22.06.2013 with one Mahendra Jaiswal and in support of his submission he has relied upon the marriage certificate issued by Sri Goswami Prabandhak Samiti, Markandey Bholey Dham, Kaithi, Varanasi (Uttar Pradesh), which has been annexed as Annexure 7 to the application , hence, there is no question of making any payment of maintenance under Section 125 Cr.P.C.
Learned A.G.A. has raised a preliminary objection regarding maintainability of the present application under Section 482 Cr.P.C., firstly, on the ground that the order dated 13.01.2015 has been challenged after about 7 years without disclosing the reasons for delay in approaching this Court, secondly, in the order dated 13.01.2015 the court below has discussed the evidence and the statement of the witness produced by the applicant as DW.2 and giving the finding that DW.2 is the cousin brother of the applicant and during the cross examination DW.2 had stated that he had not seen the marriage, but seen the Respondent No.2 wearing a Mala. He had also submitted that he was not having the mobile number of the applicant though he was claiming himself as a cousin brother of
the applicant, so he could not able to inform immediately. DW.2 has also stated that the alleged Markandey Bholey Dham Mandir is 20 KM away from his house and he suddenly reached and saw the Respondent No.2 in the temple wearing the Mala, except that neither any documentary nor any other evidence has been adduced by the applicant regarding second marriage of Respondent No.2 and the court has rightly disbelieved the testimony of Respondent No.2 which was only evidence placed by the applicant by treating him as an interested witness. The said finding of the Court has not been challenged in the present application, so it amounts to admission of the same. It is further submitted that the applicant only after the order passed in the execution proceeding dated 13.10.2021 has filed present applicant and in the order dated 13.10.2021 it is mentioned that the applicant has refused to pay the maintenance on the pretext of second marriage of Respondent No.2 but no document or evidence has been adduced/ produced. It is further submitted that the marriage certificate issued by the Sri Goswami Prabandhak Samiti, Markandey Bholey Dham, Kaithi, Varanasi (Uttar Pradesh) was never ever placed before the court below as a evidence and for the first time, it has been placed before this Court. It is further submitted that even in the application, the applicant has not stated that the marriage certificate was produced before the court below. It is further submitted that the marriage certificate would be admissible if it is granted by the Arya Samaj Mandir not by the Managing Committee of any temple, so the document has been manufactured or procured subsequently.
It is further submitted that despite the order passed in the year 2015 till date the applicant has not paid single penny to the Respondent Nos. 2 and 3, hence he is not entitled for any relief and the application is liable to be dismissed with cost.
At this stage, learned counsel for the applicant in place of making any submission has made a prayer that the applicant may be permitted to withdraw the application and the present application may be dismissed as withdrawn.
After hearing learned counsel for the parties and going through the record it is found that the applicant has not adduced any documentary evidence before the Court below i.e. the marriage certificate issued by the Managing Committee of Sri Goswami Prabandhak Samiti, Markandey Bholey Dham, Kaithi, Varanasi (Uttar Pradesh) nor it was produced before the court where the execution proceedings are going on. The only evidence which was adduced by the applicant is by presenting his cousin brother as a defence witness i.e. DW.2 - the cousin brother of the applicant, even his testimony was disbelieved by the court
below and held DW.2 as a interested witness, the said finding of the court below has not been disputed in the present application.
Learned counsel for the applicant has not stated anywhere in the application that the marriage certifiate issued by the Sri Goswami Prabandhak Samiti, Markandey Bholey Dham, Kaithi, Varanasi (Uttar Pradesh) was produced / adduced as evidence before the court below and the same has not been considered. It appears that for the first time, the marriage certificate has been produced before this Court.
As per discussion made hereinabove, the present application is devoid of merits and is liable to be dismissed.
Accordingly, the present application is dismissed.
Order Date :- 11.5.2022 S. Kumar
Digitally signed by SANTOSH KUMAR Date: 2022.05.13 09:00:29 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether the application under Section 482 Cr.P.C. challenging the maintenance order is maintainable in view of delay and lack of evidence.
Whether the marriage certificate produced for the first time before this Court was adduced as evidence before the Court below.
2 provisions across 1 enactments
Kunvar Ji Patel
State Of U.P.
Respondent No.2
Respondent No.3
Manish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
