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Allahabad High Court · body

2018 DIGILAW 2054 (ALL)

Ashif Khan v. State of U. P.

2018-09-25

J.J.MUNIR

body2018
JUDGMENT : J.J. Munir, J. 1. This is an application under Section 482 Cr.P.C. preferred by Ashif Khan from an order dated 14.8.2018 passed by the Principal Judge, Family Court, Hathras in Miscellaneous Case No.48 of 2017 under Section 126(2) Cr.P.C. allowing the said application to set aside an ex parte maintenance order dated 21.10.2015 passed in favour of the second opposite party in Maintenance Case No.357 of 2014 subject to terms. 2. Heard Sri Ajay Kumar Pathak, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned AGA appearing for the State. 3. It is the terms imposed by the learned Principal Judge, Family Court while setting aside the ex parte order that have brought the husband to this Court objecting to the terms alone. The Family Court by ex parte judgment and order dated 21.10.2015 last mentioned awarded to the wife opposite party No.2 a sum of Rs. 1,000/-per month from the date of order. The husband applied under Section 126(2) Cr.P.C. to have the same set aside. The said application has been allowed by the order impugned subject to the terms that costs of Rs.10,000/-would be payable by the applicant to the second opposite party, and, further, that pending determination of the case, a sum of Rs.1,000/-would be payable from the date of order as interim maintenance pending decision of proceedings under Section 125 Cr.P.C. on merits. 4. Learned counsel for the applicant submits that the order imposing costs in the sum of Rs.10,000/-, and, that the order of interim maintenance in the sum of Rs.1,000/-is manifestly illegal and be quashed to that extent, upholding the part by which the ex parte order of maintenance has been set aside. In short, the applicant prays for the restoration of proceedings to be upheld sans conditions. 5. It is argued that the applicant is a poor man who works as a manual labourer in order to earn his livelihood. It is urged that he is ever ready and willing to stay with his wife but she; has refused to live with him. Learned counsel has pointed out that for a fact, the second opposite party is a short tempered woman, and, walked out of her matrimonial home without any sufficient cause, under the ill advice of her parents. It is urged that he is ever ready and willing to stay with his wife but she; has refused to live with him. Learned counsel has pointed out that for a fact, the second opposite party is a short tempered woman, and, walked out of her matrimonial home without any sufficient cause, under the ill advice of her parents. It is argued that in the background of all these facts, the applicant is entitled to be heard in opposition to the maintenance claimed, with his right to be heard being restored, untrammelled by any of the conditions imposed in the order impugned. It is also urged that so far as the order awarding interim maintenance is concerned, it virtually amounts to grant of the same relief to the applicant pending proceedings that was granted by the ex parte maintenance order, since set aside. It is submitted that for this reason alone, the imposition of the condition regarding interim maintenance is flawed. 6. Learned AGA has opposed the motion to admit this application to hearing. 7. The Court has perused the order of maintenance passed ex-parte, and, since set aside by the impugned order under Section 126(2) Cr.P.C. dated 14.8.2018. The application under Section 125 Cr.P.C. was filed in the year 2015, and, was allowed to proceed ex-parte. After it reached it logical terms in the ex parte order of maintenance, the husband applied for the maintenance order to be set aside invoking his right to be heard. In doing that the applicant has some what abused the process of Court by putting the clock back to the starting point for the wife. On the other hand, the wife is going without maintenance, and, has invoked a remedy, the purpose of which is to provide maintenance to the wife, who has no means of sustenance. The remedy is designed to provide succour to a wife like the applicant. In case, the maintenance order passed ex parte were to be set aside without any relief to the wife, it would be granting a premium to the husband over his lapse, if not his wrong. 8. In the opinion of the Court, the learned Principal Judge, Family Court has done a fine tune adjustment of equity in granting the husband his right to be heard, but at the same time ordering the wife to be provided for, in the interregnum. 8. In the opinion of the Court, the learned Principal Judge, Family Court has done a fine tune adjustment of equity in granting the husband his right to be heard, but at the same time ordering the wife to be provided for, in the interregnum. No infirmity, in the opinion of this Cour,t is discernable in the order impugned. 9. This application fails and is dismissed. 10. Let a copy of this order be certified to the Family Court concerned by the office.