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Allahabad High Court · body

2014 DIGILAW 1839 (ALL)

Mahesh Kumar v. State of U. P.

2014-06-09

RAJAN ROY

body2014
JUDGMENT Hon'ble Rajan Roy, J. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. By means of this application under Section 482 Cr.P.C., the applicant, who is the husband of respondent no. 2 and father of respondents no. 3 to 5, has challenged the order dated 21.04.2014 passed by the Principal Judge, Family Court, Lucknow in Criminal Case No. 912 of 2011, Smt. Shiv Devi and others vs. Mahesh Kumar. 3. The contention of learned counsel for the applicant is that the impugned recovery warrant for recovery of the amount of interim maintenance, has been issued without considering the objection filed by the applicant and the defense taken therein. Further contention is that the respondent no. 2 is living with one Naseer of the village of the applicant in adultery. 4. Learned counsel for the applicant invited attention of the Court to the provisions of Section 125 (4) Cr.P.C., which provides that no wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section, if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. 5. Learned counsel also contends that the maintenance under Section 125 Cr.P.C. is payable to legitimate or illegitimate minor child and the respondent no. 3 Anil Kumar having attained the age of majority, no maintenance is payable to him but the court below has failed to take into consideration these aspects of the matter. 6. Learned counsel further submits that a recovery warrant under the proviso to sub-section (3) of Section 125 Cr.P.C. can be issued only on an application made to the Court for the said purpose but in the instant case, no such application having been made, the impugned recovery warrant issued suo moto is against the mandate of the said proviso. Therefore, the Court below has clearly erred in not considering the objection of the applicant before passing the order impugned. 7. Learned A.G.A fairly submitted that the objection filed by the applicant should have been considered before passing the order impugned. 8. Therefore, the Court below has clearly erred in not considering the objection of the applicant before passing the order impugned. 7. Learned A.G.A fairly submitted that the objection filed by the applicant should have been considered before passing the order impugned. 8. Considering the facts and circumstances of the case, operation of the impugned order dated 21.04.2014 passed by the Principal Judge, Family Court, Lucknow in Criminal Case No. 912 of 2011, Smt. Shiv Devi and others vs. Mahesh Kumar, shall remain stayed till the next date of listing. However, it shall be open for the Court concerned to pass a fresh order after taking into consideration the objection of the applicant as well as the provisions of Section 125 Cr.P.C or dispose of the matter finally in accordance with the law. 9. Issue notice to the respondents no. 2 to 5, who may file counter affidavit within 4 weeks. List immediately thereafter.