Court No. - 49
Case :- APPLICATION U/S 482 No. - 6812 of 2018 Applicant :- Smt. Bhagyashree Kesharwani Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Bipin Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed with a prayer to quash the impugned order dated 17.1.2018 passed by Judge Family Court, Kaushambi, in maintenance claim case no. 119 of 2015 (Smt. Bhagyashree Vs. Ashish Kumar Kesharwani), under section 125 Cr.P.C. filed on the instance of wife-applicant.
Learned counsel for the applicant submits that he has filed an application against the order dated 17.1.2018 passed by the Family Court, Kaushambi, by which the said Court has dismissed the application filed by the applicant under Section 125 Cr.P.C. on account of her seeking repeated adjournments. During the pendency of the application under Section 125 Cr.P.C., the learned Court below had passed an order dated 31.1.2017 providing for interim maintenance allowance @ of Rs, 10,000/- per month from the date of that order.
The opposite party no.2 had challenged the aforesaid order by means of 482 Cr.P.C. Application No. 4774 of 2017, which is stated to be still pending and no interim order has been passed therein.
Learned counsel for the applicant submits that on one had the interim maintenance allowance as provided for by the order dated 31.1.2017 has not been paid by the opposite party no.2. According to him, there is a short fall in the payment of interim maintenance allowance and on the other hand the learned Court below has in the order dated 17.1.2018 drawn an adverse inference against the applicant by presuming that the applicant is not participating in the proceeding because she is getting interim maintenance allowance.
He further submits that the learned Court below has erred in imposing cost on the applicant keeping in mind her difficulties to maintain her dignity and life, in absence of any means of sustenance being provided for by the opposite party no.2.
However, it is not disputed that the orders dated 5.4.2017 and 3.1.2018, by which the cost of Rs. 1,000/- and 2,000/- respectively had been imposed, have not been challenged.
As to the other reasoning given in the impugned order, learned counsel for the applicant submits that the applicant was forced to seek adjournments on account of difficulty cited by her lawyer and for that the applicant could not be blamed or made to suffer.
Having considered the argument so advanced by learned counsel for the applicant, I do not find any useful purpose would be served in issuing notice to the opposite party inasmuch as the proceeding under Section 125 Cr.P.C. are taken to protect human dignity and life in certain circumstance arising out of family discord or failing relationships.
Moreover, it cannot be lost sight of that before drawing an adverse inference against the applicant, the learned Court below ought to have been recorded a specific finding whether the interim maintenance allowance was being paid to the applicant and if any part had been paid, specific finding ought to have been recorded as to the extent the interim maintenance allowance has been paid out.
While, this Court cannot endorse the conduct of the counsel of the applicant in seeking repeated adjournments, and no litigant can be made entitled to delay the proceedings, yet in view of the order of cost having been imposed on the applicant in proceeding under Section 125 Cr.P.C., there remains no further justification to dismiss those proceedings.
In view of the above, the instant application is allowed. The impugned orders dated 5.4.2017 and 3.1.2018 cannot be sustained and is hereby set aside, subject to the applicant complying with the orders dated 5.4.2017 and 3.1.2018 within a period of two weeks from today together with a certified copy of those order before the Court whereupon the learned Court below shall fix the matter for final hearing on or before 31.3.2018, on which date the applicant undertakes to appear and not to seek any further adjournments. If the learned Court below is unable to decide the matter for any reason on the date so fixed, it may fix another date such that the matter may be positively decided on or before 30.4.2018.
In view of the above, the application is allowed. Order Date :- 27.2.2018 Mini