Partly allowed

Dr. Mohammad Akmal v. State of U.P. and Another

Allahabad HC23 Aug 2022CRLR/1881/2022

Case brief

AI extract

What is this about?

The High Court set aside an appellate order enhancing maintenance against a petitioner who was absent from the proceedings that issued an interim maintenance order. The Court set the interim order aside subject to the petitioner depositing Rs. 1,80,000 in installments. If the deposit is made, the Trial Magistrate must decide the recall application within three months.

What did the court decide?

Impugned appellate order set aside subject to deposit of Rs. 1,80,000 in three installments; Magistrate to consider recall application within three months of deposit production.

Dr. Mohammad Akmal Vs State of U.P. and Another — Maintenance and Alimony | Allahabad HC (2022)

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Court No. - 85

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Case :- CRIMINAL REVISION No. - 1881 of 2022

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Revisionist :- Dr. Mohammad Akmal Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Shamim Ahmad Ansari Counsel for Opposite Party :- G.A.,Suresh Singh

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Hon'ble Gautam Chowdhary,J.

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Heard learned counsel for the revisionist, Sri Suresh Singh, learned counsel for the opposite party no.2, learned A.G.A. and perused the record and perused the material on record.

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The present revision has been filed for setting aside Judgement and order dated 11.03.2022 passed by learned Additional District and Sessions Judge/FTC-1, (Offence against Women) in Criminal Appeal No. 44 of 2021 (Kausar Praveen Vs. Dr. Mohammad Akmal and others) under Section 29 of the Protection of Women from Domectic Violence Act, 2005 as well as for quashing the exparte order dated 17.02.2021 passed by learned Civil Judge (S.D.) FTC/Additional Chief Judicial Magistrate, Gorkhpur under Section 12 of Protection of Women from Domestic Violence Act, 2005, Police Station Rajghat, District Gorakhpur.

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Learned counsel for the revisionist submits that the opposite party no.2 is a modern lady, who wants to live separately and that the revisionist tried his level best to settle the matter but all in vain. He further submits that the opposite party no.2 instead of settling the matter, filed an application under Section 12 Protection of Women from Domestic Violence Act, which has been illegally exparte allowed by the trial Court vide order dated 17.02.2021, whereby the revisionist has been directed to pay Rs. 4000/- p.m. and Rs. 2000/- per month to the opposite party no.2 and her minor child, apart from other reliefs. Learned counsel further submits that the revisionist was not aware of the exparte order dated 17.02.2021 and as soon as, the revisionist came to know about the exparte order, he immediately filed a recall application for recalling the exparte order dated 17.02.2021. Learned counsel further submits that on the other side, the opposite party no.2 filed an appeal under Section 29 of the Protection of Women from Domestic Violence Act, which was allowed by the learned Appellate Court vide order dated 11.03.2022, by which the revisionist has been directed to pay Rs. 15,000/- per month to the opposite party no.2 and Rs. 5000/- per month to the minor child. He next submits that on one hand, the recall application is pending consideration against

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the exparte order, whereas on the other hand, the learned Appellate Court has enhanced the amount without considering the fact that the appeal has been preferred against the exparte order, thus the impugned order is illegal arbitrary and is liable to be set aside by this Court.

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Learned counsel for the opposite party no.2 as well as A.G.A. for the State has opposed the prayer and states that that the order passed by learned Magistrate has been passed after affording opportunity of hearing to the revisionist, even publication was made in the newspaper but it was the revisionist, who deliberately did not appear before the Court below thus the order passed by the Magistrate cannot be said to be an exparte order against which an appeal was preferred, which too has been rightly allowed by the learned appellate Court and therefore, the impugned orders are liable to be upheld by this Court.

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Learned counsel for the revisionist further submits that the revisionist is ready to pay some reasonable amount towards the arrears, till the outcome of the recall application. He further submits that the revisionist is ready to pay Rs. 1,80,000/- as lump sum, provided some relaxation may be granted.

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On the other hand, learned counsel for the opposite party no.2 submits that the opposite party no.2 has no objection, if the instant revision is disposed of with the direction to the trial Court to decide the recall application subject to deposit of Rs. 180,000/- He further submits that some reasonable amount per month may also be directed to be paid till the disposal of the recall application.

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With the consent of learned counsel for the parties, the impugned order dated 11.03.2022 passed by leaned Appellate Court is set aside, subject to deposit of Rs. 1,80,000/- by the revisionist in three instalments. The first instalment of Rs. 1 lacs shall be paid on or before 23.09.2022, the remaining two instalments of Rs. 40,000/- each shall be paid by the revisionist on or before 23.10.2022, 23.11.2022, respectively. The amount so deposited by the revisionist shall be paid over to the opposite party no.2 after due verification.

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In case, the revisionist deposited the aforesaid amount within the aforesaid period, no coercive action shall be taken against him and the learned Magistrate is directed to consider and decide recall application filed by the revisionist preferably within a period of three months from the date of production of a certified copy of this order before it.

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However, in case, the revisionist fails to deposit the aforesaid amount within a month from today or fails to deposit the 2nd and 3rd instalments, as stated above, the protection granted by this Court shall automatically stands vacated and the Court below will be at liberty to proceed against the revisionist in accordance with law.

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Office is directed to communicate the order passed by this Court to the concerned Court below forthwith.

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With the aforesaid directions, the instant revision stands disposed.

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Order Date :- 23.8.2022 S.Ali

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Digitally signed by SHAUKAT ALI Date: 2022.08.25 15:17:00 IST Reason: Location: High Court of Judicature at Allahabad

Dr. Mohammad Akmal v. State of U.P. and Another

Case brief

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Dr. Mohammad Akmal v. State of U.P. and Another

Case brief

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