Dismissed

Fazar Mohammad v. State of U.P. and Another

Allahabad HC21 Aug 2023A482/20456/2023

Case brief

AI extract

What is this about?

The applicant challenged the Family Court's order allowing the restoration of ex parte proceedings in a maintenance case and imposing a Rs. 20,000 cost fee. The Court dismissed the application, holding the order was not interference-worthy, but directed that the deposited cost be adjusted towards final maintenance and the main case expedited.

What did the court decide?

Cost of Rs. 20,000 deposited shall be adjusted towards final maintenance amount if any; main proceeding to be disposed within four months.

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

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Neutral Citation No. - 2023:AHC:167783

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Court No. - 90

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Case :- APPLICATION U/S 482 No. - 20456 of 2023 Applicant :- Fazar Mohammad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Suresh Singh,Ritesh Singh Counsel for Opposite Party :- G.A.,Parvish Kumar

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Hon'ble Dinesh Pathak,J.

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Heard learned counsel for the applicant, learned counsel for respondent no.2 as well as learned A.G.A for the State and perused the record.

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Applicant has invoked the inherent jurisdiction of this court under section 482 Cr.P.C. assailing the order dated 02.05.2023 passed by Principal Judge, Family Court, Gautam Buddha Nagar allowing the restoration application filed against the order dated 23.11.2022 passed in Case No. 272 of 2022 (Smt. Anjum and Another Vs. Fazar Mohammad) under section 125 Cr.P.C.

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Facts culled out from the averment made in the instant application are that respondent no.1 along with her son (respondent no.2) has moved an application dated 10.05.2022 under section 125 Cr.P.C. for maintenance. Owing to absence of the present applicant (husband), an order dated 23.11.2022 has been passed to proceed with the matter ex parte against the present applicant. Having been aggrieved, applicant has moved a recall application dated 02.05.2023 against the order dated 23.11.2022. Learned court below, vide impugned order dated 02.05.2023 has allowed the recall application on the cost of Rs.20,000/-.

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Having been aggrieved, present applicant (husband) has assailed the order dated 02.05.2023 so far as it relates to imposing the cost upon the present applicant in allowing the restoration application. Learned counsel for the appellant submits that the cost of Rs.20,000/- as imposed against the applicant is highly excessive and not commensurate with the income of the present applicant. It is further submitted that the observation of the learned Principal Judge with regard to the imposing of cost may be struck off.

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Per contra, learned counsel for the opposite party no.1 has vehemently opposed the submissions as advanced by learned counsel for the applicant and contended that the present applicant

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has deliberately averted the court proceeding to protract the litigation, therefore, learned Principal Judge has rightly passed the order dated 23.11.2022 to proceed with the mater ex parte against the applicant. It is further submitted that cost of Rs.20,000/- is not excessive considering the fact that the present applicant is playing mischievous, who has solemnized the second marriage and deserted the applicant no.1 along with her son.

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Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, it reveals that the order dated 23.11.2022 has been passed to proceed ex parte against the present applicant in proceeding under section 125 Cr.P.C. On the pointed query raised to the learned counsel for the appellant he has submitted that the respondent no.1 is the wife of the applicant. Perusal of the order dated 02.05.2023 reveals that to explore the possibility of amicable settlement between the parties, learned trial court has referred the matter to the mediation center.

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Considering the peculiar facts and circumstances of the present case, the cost as imposed by learned Family Court on the applicant is not appears to be exorbitant. However, in the interest of justice, it is provided that the cost deposited by the present applicant in pursuance of the order dated 02.05.2023 shall be adjusted towards the final maintenance amount, if any, passed by learned Family Court in proceeding under section 125 Cr.P.C.

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In this conspectus, as above, I did not find any justifiable ground to interfere in the order impugned in exercise of inherent jurisdiction under section 482 Cr.P.C. Neither there is any abuse of process of court nor the valid ground to pass any order to secure the ends of justice. Resultantly, instant application, being misconceived and devoid on merits, is dismissed with no orders as to cost.

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Before parting the matter learned counsel for the respondent no.2 has prayed has prayed to issue a direction for expeditious disposal of the original proceeding. Considering the facts and circumstances of the present case it is expedited that the proceeding under section 125 Cr.P.C. which is pending in the court of learned Principal Judge Family Court, Gautam Buddh Nagar shall be decided in accordance with law expeditiously, preferably within a period of four months from the date of production of certified copy of this order.

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Order Date :- 21.8.2023/A Gautam

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Digitally signed by :- ADITYA GAUTAM High Court of Judicature at Allahabad

Fazar Mohammad v. State of U.P. and Another

Case brief

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Fazar Mohammad v. State of U.P. and Another

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