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2010 DIGILAW 1427 (ALL)

Sudha W/O Awdesh Kumar @ Raju D/O Gaya Prasad v. Awadesh Kumar @ Raju Diwedi S/O Vishwa Nath Diwedi & Ors.

2010-04-29

RITU RAJ AWASTHI

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Hon'ble Ritu Raj Awasthi, J.:- Heard counsel for the applicant and perused the record. 2. Learned counsel for applicant submits that the marriage of the applicant was solemnized with the opposite party no.2 approximately 24 years back according to Hindu rights and rituals. After marriage due to torture by the husband and her in-laws, she had to leave her husband's house and come back to her parents house at Unnao about 15 years back. 3. The applicant having no source of income and being unable to maintain herself had filed a Case under Section 125 Cr.P.C. in the Court of A.C.J.M.(V) Unnao which was registered as Criminal Case No. 781 of 1999. The learned Trial Court below has awarded the interim maintenance. However, the applicant moved an application under Section 127 Cr.P.C. for enhancement of the said maintenance which has been registered as Misc. Case No. 169/03. The opposite party no. 2 has put in appearance and filed an application for recall of the order passed by the A.C.J.M. (V) Unnao, which is still pending before learned court below. 4. It is the admitted case that the opposite party no. 2 during the life time of the applicant had entered into second marriage with one Ms. Kamla Shukla and out of the said wedlock two children were born to the opposite party no. 2. However after the death of Smt. Kamla Shukla the opposite party no.2 has filed a case under Section 9 of the Hindu Marriage Act before the court of Principal Judge Family Court, Lucknow which has been registered as 2058/07 (Awadhesh Kumar Vs Smt. Sudha). The said case has been filed after approximately 16 years of the applicant living separately. The learned counsel for the applicant has submitted that the applicant being a poor lady and having no source of income is unable to maintain herself, therefore, she cannot afford to come to Lucknow to contest the case filed by the opposite party no.2. 5. The Hon'ble Apex Court, in the case of Sumita Singh Vs. The learned counsel for the applicant has submitted that the applicant being a poor lady and having no source of income is unable to maintain herself, therefore, she cannot afford to come to Lucknow to contest the case filed by the opposite party no.2. 5. The Hon'ble Apex Court, in the case of Sumita Singh Vs. Kumar Sanjay and Another, reported in AIR 2002 Supreme Court 396 and in the case of Varasha Paresh Shah Vs Paresh H. Shah reported in (2002) Supreme Court Cases 81, has held that the convenience of wife must be looked into by the Courts and in case the lady is not in a position to attend the court proceedings, the application for transfer may be considered and allowed. 6. In view of above, the further proceedings of the case No. 2058/07 (Aswdhesh Kumar Vs Smt. Sudha) pending before the Principal Judge, Family Court, Lucknow shall remain stayed. 7. Opposite party may file counter affidavit alongwith application for vacation of stay order.