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2017 DIGILAW 184 (ALL)

DHARAM PAL YADAV v. STATE OF U. P.

2017-01-13

PRAMOD KUMAR SRIVASTAVA

body2017
JUDGMENT Hon’ble Pramod Kumar Srivastava, J.—This revision has been preferred against judgment dated 8.2.2010 passed by Additional Principal Judge, Family Court, Kanpur Nagar in Case No. 585 of 2006 (Old No. 647 of 2002) Smt. Kiran Yadav v. Dharampal Yadav under Section 125 Cr.P.C. by which the trial Court had directed the revisionist-husband to pay maintenance to his wife. 2. It is admitted case between the parties that the revisionist-husband had filed Divorce Petition HMA No. 145 of 2005, Dharam Pal Yadav v. Smt. Kiran Devi @ Babita before the District Court, Ludhiana for divorce against his wife. It is also admitted fact that opposite party of said case Smt. Kiram Yadav (present opposite party No. -2) had appeared in said case but later on she absented herself and said case was decreed by judgment dated 23.12.2006 by Additional District Judge, Ludhiana granting decree of divorce to revisionist on the ground of cruelty and continuous desertion by wife for more than 2 years. 3. Thereafter, the opposite party No. -2 Smt. Kiran had moved pplication under Section 125 CrPC before the Family Court, Kanpur Nagar in which parties had appeared adduced their evidences. In this case the revisionist had pleaded that divorce was granted in his favour on the ground that his wife Kiran had treated him with cruelty and deserted him continuously for more than 2 years without satisfactory reason. In spite of knowledge of such existing decree of divorce, the trial Court had ignored it deliberately with the averment that said decree of divorce is ex parte so it cannot be relied. After disbelieving the finding given in the decree of divorce, the trial Court had considered the evidences and then passed the impugned order of maintenance in favour of applicant-wife, which is under challange before this Court. 4. The contention of counsel for the revisionist-husband is that since decree of divorce has been granted which is still existing, therefore the impugned judgment on ignoring said decree is erroneous. He contended that when finding of fact relating matrimonial decree of divorce has become final that OP No. -2 (wife) had deserted the husband-revisionist without any sufficient reason and treated the him with cruelty, then impugned judgment in summary proceeding is erroneous. 5. He contended that when finding of fact relating matrimonial decree of divorce has become final that OP No. -2 (wife) had deserted the husband-revisionist without any sufficient reason and treated the him with cruelty, then impugned judgment in summary proceeding is erroneous. 5. Counsel for OP No. -2 (wife) has opposed these arguments and submitted that although said decree of divorce passed by Ludhiana Court is still existing but OP No. -2 has moved restoration application after passing of impugned order, which is sub-judice. Trial Court had not committed error when it had ignored ex parte decree. His submission is that there is evidence that revisionist had treated the OP No. -2 with cruelty and misbehaved with his father-in-law, which is proof of cruelty. His request is for dismissal of the revision. 6. From perusal of the record, it is found that impugned judgment of Family Court is totally erroneous and perverse when it had deliberately ignored the decree of divorce passed by competent Court, which was existing, especially when its findings were never challenged till that time. There was specific finding of competent Court of Ludhiana that Kiran (OP No. -2 wife) has been treated her husband-revisionist with cruelty and deserted him without sufficient reason. In spite of existence of said finding of fact, the finding of lower Court in summary proceedings under Section 125 Cr.P.C., after ignoring the judgment of competent Court is found erroneous, based on improper appreciation of law. It is hereby observed that unless said decree of Court of Additional Distrit Judge, Ludhiana is set aside, it is findings are binding on parties. In such circumstances case of OP No. -2 (wife Kiran) is not found eligible for any maintenance. 7. In view of this, this revision is allowed. Impugned judgment dated 8.2.2010 passed by Additional Principal Judge, Family Court, Kanpur Nagar is set aside.