Court No. - 55
Case :- MATTERS UNDER ARTICLE 227 No. - 7924 of 2018 Petitioner :- Hashmat Ali Respondent :- State Of U.P. And Another Counsel for Petitioner :- Mohammed Iftekhar Counsel for Respondent :- G.A.
Hon'ble Chandra Dhari Singh,J.
Heard learned counsel for the petitioner, learned A.G.A. for the State and perused the record.
The present petition under Article 227 has been filed for quashing the impugned order dated 29.11.2016 passed in complaint case no. 983 of 2016 under Section 12 of Protection of Women from Domestic Violence Act, 2005, P.S. Babupurwa, District Kanpur Nagar as well as impugned recovery order dated 6.9.2018 passed by the court of Metropolitan Magistrate, Kanpur Nagar in case no. 664 of 2017 (Sabeeha Parveen Vs. Hashmat Ali).
Brief facts giving rise to the present petition is that the respondent no. 2 has filed a complaint no. 1140 of 2014 under Section 12 of Protection of Women from Domestic Violence Act, 2005, before the Metropolitan Magistrate, Kanpur Nagar on 2.12.2014 with malafide motive levelling vague and general allegations therein against the petitioner and his family member and therein court concerned has issued notices to the petitioner and his family members through the D.P.O. and fixed 8.12.2014 for the D.P.O. report and objection but no such notice has ever been received by the petitioner. Thereafter, respondent no. 2 has filed an application before the court concerned on 3.2.2015 under Section 23 of the Act for interim maintenance seeking Rs. 10,000/- per month from the petitioner. Learned counsel submits that mere allegation levelled by the respondent no. 2 does not confirm the requisite norms of Section 23 (2) of the Act and there is no evidence of domestic violence either against the petitioner or his family members. Thereafter, respondent no. 2 has filed an affidavit for the evidence ex parte before the court concerned on 4.6.2015. Thereafter, the said case has been transferred to the Civil Judge (S.D.)/FTC, Kanpur Nagar wherein that case was renumbered as complaint case no. 983 of 2016 under Section 12 of D.V. Act and the said court has passed an ex parte judgment and order dated 29.11.2016 without application of judicious mind and without affording opportunity of hearing to the petitioner awarding Rs. 3000/- to respondent no. 2 and Rs. 1500/- to each of two daughters totalling Rs. 6000/- per month from the petitioner and Rs. 50,000/- for committing physical and mental cruelty against the respondent no. 2. Learned counsel submits that aggrieved petitioner filed appeal against the order dated 29.11.2016 before the District & Sessions Judge, Kanpur Nagar and appellate court has fixed date for hearing on 20.7.2017 but in the meantime recovery warrant has been issued against him.
Learned counsel for the petitioner submits that petitioner has no any permanent income and he is working as an employee at a tailoring shop. Learned counsel submits that the recovery order dated 6.9.2018 has been passed without considering the facts of the case and without assigning the reasons for issuing the same, as such, this Court should come to rescue the petitioner.
Learned AGA has vehemently opposed the submissions advanced by learned counsel for the petitioner by contending that after considering the facts and circumstances of the case, learned Magistrate has awarded the maintenance in favour of respondent no.2 and against the said order appeal has been filed by the petitioner and appellate court also found that there is no illegality in the said order and, as such, no interim protection was granted in the said appeal, in view of this, present petition is liable to be dismissed by this Court.
After hearing the learned counsel for the petitioner, learned A.G.A. and after perusing the orders impugned as well averments made in the present application, this Court is of the opinion, that learned counsel for the petitioner fails to establish his case and could not point out any legal infirmity in the orders impugned or any ground, which may warrant any interference by this Court.
Writ petition is devoid of merit and is dismissed, accordingly Order Date :- 27.11.2018 Shekhar