Partly allowed

Sonu @ Brajesh Kumar v. State of U.P. and Another

Allahabad HC4 Apr 2023A482/6025/2023

Case brief

AI extract

What is this about?

Single Judge Allahabad High Court allowed an application under Sec. 482 Cr.P.C. modifying the Family Court order that imposed recall costs. The Court directed the applicant to pay the total cost of Rs. 40,000 in two equal installments before the ex-parte maintenance order is recalled and the main case restored for trial.

What did the court decide?

Cost of Rs. 40,000 to be paid in two equal installments by 15.04.2023 and 15.05.2023; upon payment, ex-parte order recalled and maintenance case restored for trial.

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

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Court No. - 73 Case :- APPLICATION U/S 482 No. - 6025 of 2023 Applicant :- Sonu @ Brajesh Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Neelabh Srivastava,Vijay Shankar Yadav Counsel for Opposite Party :- G.A. Hon'ble Shiv Shanker Prasad,J.

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Heard learned counsel for the applicant and the learned A.G.A. for the State.

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The present 482 Cr.P.C. application has been filed to quash the impugned judgment and order dated 22.11.2022 passed by learned Principal Judge, Family Court, District Kannauj, under Section 126 (2) Cr.P.C. in Misc. Case No. 701/12 of 2021 (Sonu Vs. Smt. Jyoti), arising out of Application under Section 125 Cr.P.C. in Maintenance Case No. 653/12/2017 (Smt. Jyoti Vs. Sonu), pending before the Court of learned Principal Judge, Family Court, District Kannauj.

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Learned counsel for the applicant submits that the opposite party no. 2 filed an application under Section 125 Cr.P.C. against the applicant in the year 2017 before the learned Family Court, Kannauj and same has been registered as Maintenance Case No. 653/12/2017 (Smt. Jyoti Vs. Sonu) claiming maintenance allowance to the tune of Rs. 15,000/- per month. The said case has decided ex-parte in favour of opposite party no. 2 vide judgment and order dated 20.11.2019 directing the applicant to pay Rs. 5,000/- per month to her as maintenance allowance. It is also submitted that when the applicant has not paid the said maintenance allowance in compliance of the order of the Family Court dated 20th November, 2019, opposite party no.2 has filed an application under Section 125 (3) Cr.P.C. before the Family Court, which has been numbered as Case No. 48/12/2020 (Jyoti Vs. Sonu). On the said application, the Family Court issued summon to the applicant directing him to deposit total Rs. 10,000/towards maintenance allowance as awarded in favour of opposite party no. 2. It is further submitted that on receiving the said summon on 23.09.2021, the applicant contacted his counsel and then he came to know that some ex-parte decision has been taken by the learned Trial Court vide judgment and order dated 20.11.2019 in favour of opposite party no.2. It is then submitted that after knowledge of the aforesaid ex-parte decision dated 20.11.2019, the applicant filed an application under Section 126 (2) Cr.P.C. before the Family Court on 13.10.2021 for recall of the ex-parte judgment and order dated 20.11.2019 and decide 653/12/2017 (Smt. Jyoti Vs. Sonu) on merits. On the said recall application, opposite party no. 2 filed her objection. It is next submitted that the aforesaid recall application has been allowed by the Family Court vide order dated 22.11.2022 with cost to the tune of Rs. 40,000/- without considering the facts and circumstances of the case and also ignoring the financial status of the applicant. He further submits that the Family Court has wrongly imposed the cost to the tune of Rs. 40,000/- upon the applicant as he has never violated the order passed Family Court and just after receiving the summon and information from his counsel, he has approached the Family Court to file recall application on 13.10.2021. In Clause-7 of the recall application, it has been stated by the applicant that he is ready to restore his matrimonial relationship with the opposite party no. 2 and in this regard he had already filed a suit/petition under Section 9 of Hindu Marriage Act for restitution of the conjugal rights on 02.08.2022 before

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the Family Court, which is still pending. It is next contended that the Family Court, while allowing the recall application of the applicant, has wrongly imposed the cost upon the applicant, which is quantified at Rs. 40,000/- which is too excessive and without testifying the financial status of the applicant. He, therefore, submits that impugned order dated 22.11.2022 cannot be legally sustained and is liable to be set aside.

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Apart from the above, it is further contended that the applicant is working as labour and earns Rs. 6,000/- per month approximately, which is not sufficient for his survival, as such it is difficult for him to deposit the cost to the tune of Rs. 40,000/-.

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On the cumulative strength of the aforesaid, learned counsel for the applicant submits that the the impugned order is erroneous both on facts as well as on law as the same has been passed without properly appreciating the exact income of the applicant, therefore, the same is liable to be set aside.

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Per contra, learned A.G.A. for the State has opposed the submission made by the learned counsel for the applicant by submitting that the applicant has neither paid any single penny to his wife i.e. opposite party no.2 towards maintenance allowance as awarded under the judgment and order dated 20.11.2019 and has deliberately violated the said judgment passed by the Family Court, therefore, the Family Court has not committed any error in imposing cost upon the applicant to the tune of Rs.40,000/- while allowing the recall application of the applicant. It is further submitted that the money towards maintenance allowance awarded by the Family Court had not be given to unknown persons but to his wife only.

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On the cumulative strength of the aforesaid, learned A.G.A. submits that there is no illegality or infirmity in the order impugned so as to warrant any interference by this Court under Section 482 Cr.P.C.

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At this stage, learned counsel for the applicant submits that applicant is ready and willing to pay Rs. 40,000/- towards payment of cost as imposed by the Family Court while passing the impugned order, in easy installments, which may be fixed by this Court.

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Considering the facts and circumstances of the case and the submissions made by the learned counsel for the parties but without entering into the merits of the case, this application is disposed of by modifying the impugned order to the extent that the applicant shall deposit the cost of Rs. 40,000/- as imposed under the impugned order in two equal installments. The first installment i.e. Rs. 20,000/- shall be paid by the applicant on or before 15th April, 2023 and the second installment i.e. Rs. 20,000/- shall be deposited by the applicant on or before 15th May, 2023. After deposit of the total cost of Rs. 40,000/-by the applicant, the ex-parte in favour of opposite party no. 2 vide judgment and order dated 20.11.2019 passed by the Family Court shall stand recalled and Maintenance Case No. 653/12/2017 (Smt. Jyoti Vs. Sonu) shall be restored to its original number. Thereafter the the Family Court shall decide Maintenance Case No. 653/12/2017 (Smt. Jyoti Vs. Sonu) in accordance with law.

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Order Date :- 4.4.2023 SK Srivastava

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Digitally signed by :- SAILESH KUMAR SRIVASTAVA High Court of Judicature at Allahabad

Sonu @ Brajesh Kumar v. State of U.P. and Another

Case brief

What is this about?

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Sonu @ Brajesh Kumar v. State of U.P. and Another

Case brief

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