Rajneesh Singh Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:14077

Court No. - 73

Case :- APPLICATION U/S 482 No. - 28393 of 2024 Applicant :- Rajneesh Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arvind Kumar Srivastava,Sampanna Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Raj Beer Singh,J.

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Heard learned counsel for the applicant and learned AGA for the State. None has appeared on behalf of opposite party no. 2 despite service of notice.

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This application under Section 482 Cr.P.C. has been preferred against the order dated 26.04.2024, passed by the Principal Judge, Family Court, Auraiya, in case No. 815 of 2021, under Section 126(2) Cr.P.C., P.S. Dibiyapur, district Auraiya, whereby the application filed by the applicant under Section 126(2) Cr.P.C. has been allowed subject to the condition that applicant shall pay an amount of Rs. 95,000/- as part payment of the arrears of maintenance.

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It has been argued by learned counsel for the applicant that the impugned order is against facts and law and thus, liable to be set aside. It was submitted that the Family court has granted maintenance to opposite party no. 2 by ex-parte judgement dated 23.07.2019. When applicant came to know about the ex-parte judgement dated 23.07.2019, he has filed an application under Section 126(2) Cr.P.C. to recall that ex-parte judgement and an application under Section 5 of the Limitation Act was also filed. The application under Section 5 of the Limitation Act was allowed subject to costs of Rs. 8,000/- but the application under Section 126(2) Cr.P.C. has been allowed subject to the condition that applicant shall pay an amount of Rs. 95,000/- as part payment of

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arrears of maintenance. It was further submitted that once an application under Section 126(2) Cr.P.C. is allowed and ex-parte judgement is recalled, the arrears of maintenance, as accrued in pursuance of the ex-parte judgment, cannot be recovered.

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Learned AGA has opposed the application and submitted that there is no illegality or perversity in the impugned order.

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I have considered the rival submissions and perused the record.

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Perusal of record shows that applicant is husband of opposite party no. 2. The opposite party no. 2 has filed a case under Section 125 Cr.P.C. against applicant, which was decided by ex-parte judgment and order dated 23.07.2019, granting maintenance to opposite party no. 2/wife. Thereafter, on 20.11.2021 applicant has filed an application under Section 126(2) Cr.P.C. along with Section 5 of the Limitation Act. The application under Section 5 of the Limitation Act was allowed on 25.11.2021 subject to costs of Rs. 8,000/-. After hearing both the parties, the application under Section 126(2) Cr.P.C. has been allowed by the Family court vide impugned order dated 26.04.2024 subject to the condition that applicant shall pay an amount of Rs. 95,000/- as part payment of arrears of maintenance. It may be observed that once the ex-parte judgment is recalled, the opposite party no. 2 would lost her arrears of maintenance accrued in pursuance of the said ex-parte judgement and therefore, in order to compensate the opposite party no. 2, reasonable costs has to be imposed upon the applicant. In the instant matter, it may be seen that the opposite party no. 2 is contesting the case since the year 2018 and she was awarded maintenance by ex-parte judgment dated 23.07.2019. The applicant has filed the aforesaid application under Section 126(2) Cr.P.C. after one and a half year. When the application under

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Section 126(2) Cr.P.C. was decided, there were arrears of maintenance to the tune of Rs. 2,85,000/-. By allowing the application under Section 126(2) Cr.P.C., the opposite party no. 2 would lost her entire arrears of maintenance and thus, substantial costs has to be imposed upon the applicant. In view of the facts of the matter, the order to deposit Rs. 95,000/- as part payment of arrears has to be considered as costs qua application under Section 126(2) Cr.P.C. It cannot be said that the costs of Rs. 95,000/imposed by the Family court is excessive or arbitrary, against the loss of arrears of maintenance. The said amount of Rs. 95,000/shall be considered as costs qua application under Section 126(2) Cr.P.C. and not payment of arrears of maintenance. As stated earlier, once the application under Section 126(2) Cr.P.C. is allowed, the arrears of maintenance accrued to the opposite party No. 2 in pursuance of the ex-parte judgement dated 23.07.2019 would be vanished and not recoverable. The said costs has been imposed to compensate that loss.

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Considering all relevant facts of the matter, except the fact that said amount of Rs. 95,000/- shall be considered as costs and not the part payment of arrears, this Court does not find any such patent illegality or abuse of the process of court in the impugned order dated 26.04.2024 so as to require any interference by the Court by invoking the extraordinary jurisdiction under Section 482 Cr.P.C. Thus, the prayer sought by applicant is refused.

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The application u/s 482 Cr.P.C. is accordingly disposed of with aforesaid observations.

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Order Date :- 27.1.2025 Anand

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Digitally signed by :- ANAND VERMA High Court of Judicature at Allahabad

Rajneesh Singh v. State of U.P. and Another

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