Dismissed

Abhishek Kumar v. State of U.P. and Another

Allahabad HC3 Feb 2023A482/2548/2023

Case brief

AI extract

What is this about?

The High Court rejected a Section 482 Cr.P.C. application seeking re-examination of the wife in a maintenance case to prove remarriage via Facebook photos. The court held the impugned orders were just, proper, free from illegality, and no ground existed for further cross-examination or coercive measures.

What did the court decide?

Application under Section 482 Cr.P.C. rejected; impugned orders set aside prayer dismissed.

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

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Court No. - 69

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Case :- APPLICATION U/S 482 No. - 2548 of 2023

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Applicant :- Abhishek Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ankit Srivastava,Ch. Dil Nisar Counsel for Opposite Party :- G.A.

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Hon'ble Samit Gopal,J.

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List revised.

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Heard Shri Choudhary Dilnisar, learned counsel for the applicant, Sri Raj Kumar Gupta, learned counsel for the State and perused the material brought on record.

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The present application under Section 482 Cr.P.C. has been filed by the applicant-Abhishek Kumar with the prayer to setaside the impugned order dated 28.11.2022 and 12.12.2022 in Case No.418 of 2016 (Smt. Shalu @ Shalini Vs. Abhishesh Kumar) pending in the court of Addl. Principal Judge, Saharanpur and further with the prayer to direct the court below to allow the applicant counsel to re-examine P.W.1 as per U/S 311 Cr.P.C.

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The facts of the present case are that the applicant is the husband of opposite party no.2. The opposite party no.2 filed an application dated 15.6.2016 under Section 125 Cr.P.C. before the concerned family court claiming maintenance from the applicant for her and her two minor children. Even an application for interim maintenance was also filed. The matter proceeded in which the statement of the opposite party no.2/wife was recorded as P.W.1 and Rajpal Singh was examined as P.W.2. Rajpal Singh, the father of opposite party no.2 filed an application before the concerned trial court on 13.9.2019 with the prayer to appoint him guardian of two minor children. Subsequently the said application was withdrawn by him. The evidence of P.W.1/opposite party no.2 was recorded. On 9.11.2022, the applicant filed certain documents to demonstrate that the opposite party no.2 has remarried. He filed an application dated 28.11.2022 with the prayer that the opposite party no.2 be recalled for further cross-examination. He had filed an application for summoning the employee of the Facebook for verification of the photographs of opposite party no.2 to substantiate her remarriage. The court on the expenses of the applicant summoned the employee of the Facebook who stated that URL Code of the account is needed to access the same. An application dated 28.11.2022 under Section 311 Cr.P.C. for summoning the opposite party no.2 for further cross-

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examination was rejected vide order dated 28.11.2022 by the trial court. The application of the applicant for directing the opposite party no.2 to provide the URL Code of Facebook Account also stood rejected vide order dated 12.12.2022. The present application U/S 482 Cr.P.C is thus filed before this Court.

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Learned counsel for the applicant argued that re-summoning of opposite party no.2 for re-cross-examination is vital and important for the facts of the present case as she needs to be recross-examined with regards to the factum of her second marriage. Even the order dated 12.12.2022 needs to be set-aside and direction needs to be given to the trial court to take URL Code of Facebook Account of opposite party no.2 which would be needed to see the photographs to substantiate her second marriage. The orders of the trial court are bad in the eyes of law. It is argued that in the event, the said application is not allowed, the applicant would be seriously prejudiced. As such a case is made out for appropriate directions to the trial court and the same be issued.

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Per contra, learned counsel for the state opposed the prayer for quashing and argued that the orders are speaking orders without any irregularity or illegality. The present petition is devoid of merit and is liable to be dismissed.

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After having heard learned counsel for both the parties and perusing the records, it is evident that the opposite party no.2 was examined before the trial court as P.W.1 and her entire statement has been recorded. There is no reason for her resummoning for further cross-examination. Further with regards to URL Code of Facebook Account, the finding of the trial court even for the same is to the effect that a person cannot be forced to share the same. In the opinion of the court, both the orders are just and proper orders having no irregularity or illegality.

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The present application under Section 482 Cr.P.C. lacks merit and is, accordingly, rejected.

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(Samit Gopal, J.)

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Order Date :- 3.2.2023 Gaurav

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Digitally signed by :- GAURAV KULSHRESTHA High Court of Judicature at Allahabad

Abhishek Kumar v. State of U.P. and Another

Case brief

What is this about?

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Abhishek Kumar v. State of U.P. and Another

Case brief

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