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2019 DIGILAW 2603 (ALL)

Aftab Alam v. State of U. P.

2019-11-20

RAM KRISHNA GAUTAM

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JUDGMENT : Ram Krishna Gautam, J. This criminal revision under Section 397/401 of Cr.P.C. has been filed by Aftab Alam against State of U.P. and Another, with a prayer for setting aside impugned order of an appellate Court Additional District Judge F.T.C., Court No. 20, Allahabad, passed in Criminal Appeal No. 184/2017, Aftab Alam vs. State of U.P. and another, dated 13.7.2018, whereby appeal was dismissed and order of Magistrate dated 3.6.2014, passed over an application moved under Section 23 of Protection of Woman from Domestic Violence Act, 2005, was confirmed. 2. Learned counsel for the applicant argued that appellate failed to appreciate facts and law placed before it. Order dated 3.6.2014 was against fact on record. Applicant had deserted her husband and husband who was a workman at petrol pump was not in a position to maintain as above but Magistrate failed to take notice of this fact and this was challenged before Appellate Court. Wherein, Appellate court has not decided matter in issue. Rather, it dismissed appeal on the basis of finding given by this Court in a proceeding under Section 482 of Cr.P.C. Hence, it was apparently erroneous on the face of record and jurisdiction exercised by Appellate Court was not proper in its exercise. Hence, this criminal revision with above prayer. 3. Learned counsel for the respondent vehemently opposed that this Court in a proceeding under Section 482 of Cr.P.C., wherein, order dated 3.6.2014, was challenged, had decided by way of dismissing above proceeding and confirming impugned order. Hence, once this order was confirmed, then, Appellate Court was well within jurisdiction to pass impugned order. Hence, this revision be dismissed. 4. Learned has AGA also opposed the above prayer. 5. Having heard learned counsel for the parties and gone through the material placed on record, it is apparent that in a proceeding under Section 23 of Protection of Woman from Domestic Violence Act, 2005, in a complaint Case No. 540 of 2014, pending before Court of Chief Judicial Magistrate-Ist, Allahabad, (Smt. Asma Bano Vs. Aftab Alam), it was requested that some interim maintenance be awarded and learned Magistrate, vide order dated 3.6.2014, directed opposite party husband of applicant for providing Rs. 3,000/-, per month as maintenance to Smt. Asma Bano. This order was challenged in a proceeding under Section 482 of Cr.P.C. and the same was dismissed by High Court, wherein, above order was got confirmed. 3,000/-, per month as maintenance to Smt. Asma Bano. This order was challenged in a proceeding under Section 482 of Cr.P.C. and the same was dismissed by High Court, wherein, above order was got confirmed. Though, this order was challenged in a proceeding before Hon'ble Court, side by side, it was challenged in an appeal before Appellate Court of Session Judge, Allahabad, wherein, Appellate Court dismissed appeal by impugned order, mentioning the order of this Court, passed in a proceeding under Section 482 of Cr.P.C. 6. From the very perusal of revision, it is apparent that it is an admitted fact that Smt. Asma Bano, is married wife of revisionist. She is having separate living. It was said to be a desertion by husband, whereas, husband has said desertion by wife. But, it is a question of trial court and it is admitted fact that both of them are living in desertion. The maintenance awarded is Rs. 3,000/-, per month, a very meagre amount at the rupees of 100 per day. Nobody can survive in 100 rupees per day and even husband is working at petrol pump, is always expected to maintain his wife. A direction for paying Rs. 3,000/-, per month, is well withing jurisdiction of Magistrate. This order was challenged in a proceeding under section 482 of Cr.P.C., which too, was dismissed and order was confirmed. Upon the request of learned counsel for the revisionist, matter was referred for mediation wherein, assurance was made for making deposit of interim maintenance by above order of Magistrate's Court. This mediation appears to have been failed and this further appeal and criminal revision against same maintenance order, has been filed. It shows litigating attitude of husband, who had filed all these proceeding, but not ready to make payment to his wife. High Court, in its general superintendence of power under Article 227 of Constitution of India, is also to look all such type of affairs, which are to be cured for enabling Constitution and its system to get the goal of welfare state enshrined in Chapter IV of the Constitution of India. 7. Under all above facts and circumstances, learned trial Court as well as learned Appellate Court was well within jurisdiction. There is no illegality or irregularity apparent on record or failure of jurisdiction by any above court. 7. Under all above facts and circumstances, learned trial Court as well as learned Appellate Court was well within jurisdiction. There is no illegality or irregularity apparent on record or failure of jurisdiction by any above court. Though, this petition deserves to be dismissed with special cost but the cost is not being imposed. But a direction is being made for making payment of maintenance as ordered by lower Courts. 8. The Criminal Revision is dismissed, accordingly. 9. With the aforesaid directions, this application is finally disposed of.