Shubhant Yadav @ Salil Yadav Vs State of U.P. and 2 Others

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Neutral Citation No. - 2025:AHC:125625

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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(Sl. No. 16)

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Court No. - 78

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Case :- APPLICATION U/S 482 No. - 28616 of 2024

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Applicant :- Shubhant Yadav @ Salil Yadav Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Abhishek Kumar Srivastava,Ravitendra Pratap Singh Chandel Counsel for Opposite Party :- G.A.

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Connected with

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Case :- APPLICATION U/S 482 No. - 13706 of 2024

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Applicant :- Richa Yadav And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- D.M.Tripathi Counsel for Opposite Party :- Abhishek Kumar Srivastava,G.A.,Ravitendra Pratap Singh Chandel

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Hon'ble Anish Kumar Gupta,J.

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Since both the applications arises out of matrimonial dispute between the parties, hence with the consent of learned counsel for the parties, both the applications are decided by this common order.

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Heard Sri Aditya Prakash Singh, Advocate holding brief of Sri R.P. Singh Chandel, learned counsel for the applicant in Application U/S 482 No. 28616 of 2024 and for the opposite party no. 2 in Application U/S 482 No. 13706 of 2024; Sri Arunesh Dutta, Advocate holding brief of Sri D.M. Tripathi, learned counsel for the applicants in Application U/S 482 No. 13706 of 2024 and for the opposite party nos. 2 and 3 in Application U/S 482 No. 28616 of 2024 and Sri Satyendra Nath Tiwari, learned A.G.A. for the State in both the applications.

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The Application U/S 482 No. 28616 of 2024 has been filed by the applicant-Shubhant Yadav @ Salil Yadav seeking quashing of the order dated 24.6.2024 whereby recovery warrant has been

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issued against the applicant in Misc. Case No. 591 of 2020 (arising out of Maintenance Case No. 403 of 2018) under Section 128 Cr.P.C., P.S.-Jhunsi, District-Prayagraj.

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The Application U/S 482 No. 13706 of 2024 has been filed by the applicants-Richa Yadav and Shriti Yadav (Minor) seeking quashing of the order dated 5.12.2023 passed by Additional Principal Judge, Family Court, Court No. 5, Prayagraj in Misc. Case No. 1052 of 2021 (Shubhant Yadav vs. Richa Yadav) under Section 126 Cr.P.C., P.S.-Jhunsi, District-Prayagraj.

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The applicant-Shubhant Yadav @ Salil Yadav is the husband of opposite party no. 2-Richa Yadav and Shriti Yadav (minor) is their daughter. There was a matrimonial dispute between the parties and in view thereof the opposite party no. 2-Richa Yadav along with her minor daughter moved an application under Section 125 Cr.P.C. In the said application, notices were issued to the husband (applicant-Shubhant Yadav) which were duly delivered upon him on 30.11.2018. The Principal Judge, Family Court, Allahabad has recorded its satisfaction with regard to service of notice in following terms:-

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"ददिनननाँक 30.11.2018

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पतनवलली पपेश हहई। पनरररनली व्यदक्तिगत रूप सपे उपससरत हहै। पनरररनली ककी ओर सपे पनररननपत 7 ख मय शपरपत दवपकली पर भपेजली गयली ररजसटटली कपे सटपेटस कनगज कपे सनर पसत त ु दकयन गयन रजस पर आइटम दडिललीवडिर कन उलपेख हहै। ऐसपे तथ्य एववं पररससरदतययों मम दवपकली पर ननोदटस ककी तनमलीलली जररए ररजसटटली पयनरप्त मननली जनतली हहै। ससूचली ददिननवंदकत 30.11.18 सपे चनर अदभलपेख दिनरखल दकयन गयन रजसपे पतनवलली पर रखन जनए। वनसतपे अदग्रिम आदिपेश ददिनननाँक 12.12.2018 कनो पपेश हनो।

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पधनन न्यनयनधलीश, पनररवनररक न्यनयनलय

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इलनहनबनदि।"

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Despite the service of notice, since none appeared on behalf of the applicant in the said proceedings, on 19.1.2019 the Principal Judge, Family Court, Allahabad proceeded ex parte against the applicant. The order dated 19.1.2019 reads as under:-

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"ददिननवंक 19.01.2019

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पतनवलली पपेश हहई। पतुकनर करनयली गयली। पतुकनर पर पनरररनली उपससरत हहै। दवपकली उपससरत नहहीं हहै। पसूवर ककी दतरर पर दवपकली पर ननोदटस ककी तनमलीलली जररए ररजसटटली पयनरप्त मननली जन चतुककी हहै। दवपकली उपससरत नहहीं हहै। अततः दवपकली कपे दवरूद्ध उसककी अनतुपससरदत मम वनदि मम एकपकलीय कनयरवनहली अग्रिसनररत ककी जनतली हहै। ददिनननाँक 18.03.2019 कनो वनसतपे एकपकलीय सनक्ष्य पपेश हनो।

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पधनन न्यनयनधलीश, पनररवनररक न्यनयनलय

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इलनहनबनदि।"

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Subsequent thereto, the opposite party no. 2 (Wife) filed an application before this Court seeking a direction for expediting the hearing of proceedings under Section 125 Cr.P.C. and this Court vide order dated 28.6.2019 had directed to conclude the proceedings within four months from the date of production of certified copy of the order. The said order was placed on record by the opposite party no. 2 before the Principal Judge, Family Court on 10.7.2019. Thereupon, the Principal Judge, Family Court proceeded with the matter expeditiously and passed the final order dated 24.12.2019 allowing the application under Section 125 Cr.P.C. in favour of the opposite party no. 2 and awarded maintenance at the rate of Rs. 15,000/- per month to the wife (opposite party no. 2) and Rs. 10,000/- per month to the minor daugther (opposite party no. 3). Thus, the total amount of maintenance awarded was Rs. 25,000/- per month from the date of order i.e. 24.12.2019.

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Despite the order of maintenance, the applicant-husband did not pay the maintenance to the opposite party no. 2 and 3. Thus, the opposite party no. 2 filed an application under Section 128 Cr.P.C. seeking recovery of maintenance amount so awarded by the order dated 24.12.2019. It is the case of the applicant-husband that when in the said proceedings recovery warrant was issued and the police approached him on 23.11.2021 then he came to know about the proceedings under Section 125 Cr.P.C. Thereupon, he applied for certified copy of the order dated 24.12.2019 which was received by him on 25.11.2021. Thereafter, the applicant-husband filed an application under Section 126(2) Cr.P.C. seeking recall of the order dated 24.12.2019 along with an application under Section 5 of the Limitation Act. Vide order dated 5.12.2023, the Additional Principal Judge, Family Court allowed the application under Section 5 of the Limitation Act as well as the application under Section 126(2) Cr.P.C. subject to payment of Rs. 75,000/- as

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security amount within fifteen days by the applicant-husband.

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Learned counsel for the applicant-husband submits that pursuant to the said order, the security amount was deposited by the applicant within the prescribed period, which has also been received by the opposite party no. 2-wife. The said order dated 5.12.2023 was challenged by the opposite party no. 2 and 3 in Application U/S 482 No. 13706 of 2024 which is the connected petition and vide order dated 27.4.2024 this Court had stayed the effect and operation of the order dated 5.12.2023. Thereupon, the Principal Judge, Family Court proceeded in the execution proceedings under Section 128 Cr.P.C. against the applicanthusband and issued the impugned recovery warrant on 24.6.2024, which has been challenged by the applicant-husband in Application U/S 482 No. 28616 of 2024.

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Learned counsel for the applicant-husband submits that since the proceedings under Section 125 Cr.P.C. has been proceeded against him ex parte, therefore, an opportunity be granted to him to contest the proceedings and the said proceedings are required to be heard on merits after giving an opportunity of hearing to the applicant-husband also. He further submits that since the application under Section 126(2) Cr.P.C. was allowed and the amount of Rs. 75,000/-, which was directed to be paid by the Family Court, has already been paid by him and the same has been received by the opposite party no. 2, therefore, the execution proceedings under Section 128 Cr.P.C. cannot be proceeded with. Thus, the impugned order dated 24.6.2024 is uncalled for, hence he seeks quashing of the order dated 24.6.2024.

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Per contra, learned counsel for the opposite party no. 2 (wife) and 3 (minor daughter) submits that vide order dated 30.11.2018, the trial court has categorically recorded that notices issued in proceedings under Section 125 Cr.P.C. were duly delivered upon him and he deliberately chose not to appear and contest the proceedings under Section 125 Cr.P.C.. Therefore, the court having no other option has proceeded ex parte against the applicant vide order dated 19.1.2019 and even till conclusion of the proceedings the applicant-husband did not participate in the proceedings. Therefore, after due service of notice it was a deliberate attempt on the part of the applicant-husband not to participate in the said proceedings. Therefore, the ground taken in application under Section 126 Cr.P.C. that he was never served any notice is unsustainable. Once the applicant had already been served in proceedings under Section 125 Cr.P.C. and he deliberately chose not to participate in the proceedings, the application on his behalf

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after two years of the final order is not maintainable.

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Having heard the rival submissions made by learned counsel for the parties, this Court has carefully gone through the records of the case.

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Facts of the case are already noted hereinabove. Vide order dated 30.11.2018 the Family Court has categorically recorded that notices were issued to the applicant-husband and he deliberately did not participate in proceedings even after service of notice and thereupon vide order dated 19.1.2019 the court proceeded ex parte against the applicant-husband. Thus, there was no illegality in proceeding against the applicant-husband ex parte. Thus, no illegality can be found in the final order dated 24.12.2019 passed by the Principal Judge, Family Court. Since the service was already there, merely because the applicant submits an application under Section 126(2) that too after two years of the final order passed stating therein that he has not been served cannot be relied upon in view of the specific finding recorded by the trial court.

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Therefore, in the considered opinion of this Court the Additional Principal Judge, Family Court has erred in allowing the application under Section 5 of the Limitation Act as well as the application under Section 126(2) Cr.P.C. filed by the applicanthusband. Therefore, the order dated 5.12.2023 is not sustainable in law and is accordingly quashed.

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Since the order dated 5.12.2023 whereby the application under Section 126(2) Cr.P.C. was allowed by the Additional Principal Judge, Family Court, Prayagraj is quashed, therefore, there is no illegality in the impugned order dated 24.6.2024 whereby recovery warrants has been issued against the applicant-husband.

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Accordingly, the Application U/S 482 No. 13706 of 2024 is allowed and the Application U/S 482 No. 28616 of 2024 is dismissed .

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Order Date :- 29.7.2025 Kirti

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(Anish Kumar Gupta, J.)

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Digitally signed by :- SMT KIRTI MISHRA High Court of Judicature at Allahabad

Shubhant Yadav @ Salil Yadav v. State of U.P. and 2 Others

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