Allowed

Ajit Sharma v. State of U.P. and Another

Allahabad HC11 Jan 2023A482/12072/2022

Case brief

AI extract

What is this about?

The High Court allowed a revision challenging the rejection of an application under Section 126(2) Cr.P.C. It set aside the impugned orders, directing the lower court to afford the applicant one final opportunity to be heard regarding maintenance liability while imposing security and deposit conditions.

What did the court decide?

Impugned orders dated 04.02.2021 and 03.03.2022 set aside; applicant directed to furnish security and deposit maintenance arrears to avail of a final hearing opportunity.

Ajit Sharma Vs State of U.P. and Another — Maintenance and Alimony | Allahabad HC (2023)

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Court No. - 64

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Case :- APPLICATION U/S 482 No. - 12072 of 2022

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Applicant :- Ajit Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vikas Sharma,Prateek Tyagi Counsel for Opposite Party :- G.A.,Santosh Kumar Dubey

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Vikas Sharma, learned counsel for the applicant, learned AGA for the State and Sri Krishna Kant Dubey, learned Advocate, holding brief of Sri Santosh Kumar Singh, learned counsel for opposite party no. 2.

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Presently, challenge has been raised to the order dated 03.03.2022 passed by Additional Principal Judge, Family Court, Court No. 2, Ghaziabad in Misc. Case No. 17 of 2021 (Ajeet Sharma vs. Rajni Sharma) whereby the application filed by the present applicant under Section 126(2) Cr.P.C. with reference to the earlier order dated 04.02.2021 passed in Case No. 338 of 2015 (Smt. Rajni Sharma vs. Ajeet Sharma), has been rejected.

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Thus, the award of maintenance at the rate of Rs. 6,000/- per month from the date of application being 5.6.2015, has been maintained.

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Upon hearing learned counsel for the parties and perusal of the record, it transpires that the principal grievance of the applicant is that he was not heard at the stage of final proceeding in Case No. 338 of 2015 resulting in fixation of maintenance at a higher rate that too from the date of application. In that regard, learned counsel for the applicant asserts that the applicant could not appear before the learned court below for Covid circumstances. Acting according to his counsel advise, the applicant did not appear before the learned court below. Meanwhile, the order dated 04.02.2021 came to be passed. These circumstances though cited by the applicant before the court below have been ignored in the

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order dated 03.03.2022.

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The application has been vehemently opposed by learned counsel for opposite party no. 2. He would submit, the applicant had not only participated in the proceeding, he had also cross examined the witness of opposite party no. 2. Only, when he realized the inevitable fate of the application, he stopped participation. Therefore, no indulgence may be granted.

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Having heard learned counsel for the parties and having perused the record, it is true that the applicant had initially participated in the proceeding and cross examined the witnesses produced by the claimant/opposite party, at the same time, it cannot be disputed during the spread of pandemic Covid, citizens were generally inconveniensed and were also obstructed from appearing before various courts.

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Seen in that light, the interest of justice may have been served better if one more opportunity had been granted to the applicant to advance submissions before the final order dated 04.02.2021 came to be passed. To that extent, the orders dated 04.02.2021 and 03.03.2022 appear to be harsh. At the same time, equity is to be balanced. Accordingly, the present application is disposed of with the following directions:

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(1) The applicant may furnish security in the shape other than cash or bank guarantee to the tune of Rs. 5,50,000/- to the satisfaction of the learned court within a period of one month from today i.e. not later than 13.2.2023.

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(2) The applicant shall also deposit before the learned court below a sum of Rs. 72,000/- towards maintenance allowance for the period 04.02.2021 to January, 2023 on or before 31.1.2023.

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(3) Subject to above compliance, the order dated 03.03.2021 is set aside with observation that learned court below may pass appropriate order on the application filed by the applicant under section 126(2) Cr.P.C. as may allow one opportunity to be heard in the maintenance

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proceedings.

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(4) The applicant shall continue to pay towards due maintenance allowance, Rs. 6,000/- from the month of February, 2023 on or before 10th of each month.

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(5) The above payments may be made subject to final orders to be passed by the learned court below.

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(6) Subject to above compliance shown by the applicant, no further recovery shall be made from the applicant, in the meanwhile.

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Order Date :- 11.1.2023 Puspendra

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Digitally signed by :- PUSPENDRA NARAYAN SINGH High Court of Judicature at Allahabad

Ajit Sharma v. State of U.P. and Another

Case brief

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Ajit Sharma v. State of U.P. and Another

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