Court No. - 28
Case :- APPLICATION U/S 482 No. - 762 of 2019 Applicant :- Dharmpal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Gajendra Singh Counsel for Opposite Party :- G.A.
Hon'ble Jayant Banerji,J.
This application has been filed for quashing the impugned order dated 26.11.2018, passed by the Principal Judge, Family Court, Budaun in Criminal Misc. Case No. 370 of 2017 (Dharampal Vs. Smt. Kitabshri), whereby the Family Court has dismissed the application under Section 125 (5) Cr.P.C. filed by the applicant.
It appears from the record that the opposite party no.2 is the legally wedded wife of applicant who filed the application in 2013 being Misc. Case No. 902 of 2013 before the Principal Judge, Family Court, Budaun under Section 125 Cr.P.C against the applicant claiming maintenance.
After hearing the parties, the Family Court by means of judgement and order dated 12.4.2016 allowed the application of the opposite party no.2 and directed payment of an amount of Rs. 2,500/ per month from the date of filing of the application for maintenance. Admittedly, the judgement and order dated 12.4.2016 has not been challenged by the applicant, as such it has become final.
The applicant thereafter proceeded to file an application under Section 125 (5) Cr.P.C stating that the opposite party no.2 is living in adultery with one Ratiram which has been concealed by the opposite party no.2 and due to that reason, she does not wish to live with the applicant and, therefore, it was prayed for recalling of the order dated 12.4.2016, passed in proceedings under Section 125 Cr.P.C. The proceedings pursuant to the application under Section 125(5) Cr.P.C. initiated by the applicant came to be numbered as Crl. Misc. Case No. 370 of 2017 wherein also, the order passed by the Family Court in proceeding under Section 125(3) Cr.P.C. (Misc. Case No. 418 of 2016) as well as order of maintenance passed by the Family Court dated 12.4.2016 in Misc. Case N. 902 of 2013 were challenged.
The Family Court noticed that no evidence has been filed on behalf of the applicant for establishing that the opposite party no.2 is living in adultery with Ratiram. The court below further observed that the applicant has filed this application only with a view to avoid payment of maintenance amount for which proceedings under Section 125(3) Cr.P.C are being taken in Criminal Misc. Case No. 418 of 2016. It was further observed that the order of maintenance passed in favour of the opposite party no.2 in Crl. Misc. Case No. 902 of 2013 was decided on merits on 12.4.2016, whereby the applicant was directed to pay a sum of Rs. 2,500/ per month to the opposite party no.2 from the date of application and, seeing no error in the orders passed in proceeding under Section 125(3) Cr.P.C in Crl. Misc. Case No. 418 of 2016, the application of the applicant was rejected.
This Court sees no error in the order dated 26.11.2018, passed by the Family Court. The issue that was sought to be agitated by the applicant in his application under Section 125(5) Cr.P.C. was already decided by the Family Court in Misc. Case No. 902 of 2013 by means of judgement and order dated 12.4.2016.
As stated above, the order of maintenance dated 12.4.2016 has not been challenged and thus has become final. In view of the facts that I hold that the application under Section 125 (5) Cr.P.C. was nothing but an abuse of process of the Court. The Family Court has correctly rejected the application of the applicant under Section 125(5) Cr.P.C.
In view of above, this application is, accordingly, dismissed.
Order Date :- 21.1.2019 sfa/ (Jayant Banerji, J)