Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 10736 of 2005 Petitioner :- Kailash Prasad Soni Respondent :- Special Judge( E.C. Act), Mirzapur And Others Counsel for Petitioner :- Manoj Kumar Singh Counsel for Respondent :- A.G.A.,Achal Singh Vats,Shree Prakash Dwivedi
Hon'ble Aniruddha Singh,J. Criminal Misc. Restoration Application No. 344363 of 2015 Heard learned counsel for the parties.
Learned counsel for the petitioner submitted that this petition was dismissed on 21.9.2015 due to absence of learned counsel for the petitioner and restoration application was moved within time on 30.9.2015.
Cause shown is sufficient.
The restoration application is allowed.
The order dated 21.9.2015 is recalled and the writ petition is restored to its original number.
Order Date :- 21.8.2018 NS .
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Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 10736 of 2005 Petitioner :- Kailash Prasad Soni Respondent :- Special Judge( E.C. Act), Mirzapur And Others Counsel for Petitioner :- Manoj Kumar Singh Counsel for Respondent :- A.G.A.,Achal Singh Vats,Shree Prakash Dwivedi
Hon'ble Aniruddha Singh,J.
Heard learned counsel for the parties and perused the record.
By means of this writ petition, petitioner has prayed for following reliefs:-
"i) a writ, order or direction in the nature of certiorari quashing the order dated 21.2.2005 passed by the respondent no. 2 and order dated 15.7.2005 passed by the respondent no. 1 (Annexure Nos. 6 and 7 to this writ petition).
ii) a writ, order or direction in the nature of mandamus commanding the respondents no. 3 to take the maintenance amount either under Section 125 Cr.P.C. or under Section 24 of Hindu Marriage Act and or adjust the amount awarded under matrimonial proceeding and recovery under the both orders shall not be allowed by the executing court."
Learned counsel for the petitioner submitted that in Case No. 68 of 2000 vide order dated 10.9.2001 passed by Civil Judge (Senior Division), Sonebhadra, application no. 15-Ga moved under Section 24 of Hindu Marriage Act was allowed and petitioner was directed to pay Rs.500/- per month as interim maintenance to the respondent no.3 (wife), hence she is not entitled to get maintenance under Section 125 Cr.P.C..
Learned counsel for the petitioner placed reliance upon a judgment of this Court passed in Criminal Revision No. 15 of 2014; Ashish Gupta Vs. State of U.P. and another on 12.1.2018. The relevant portion of the order dated 12.1.2018 reads as under:-
"It is also worthwhile to mention that the order also containing a clause that in case opposite party no. 2 is also getting maintenance amount in any other proceedings ,then the same will be adjusted towards the payment of the amount directed to be paid in the present case. Although under the Act the court is entitled to pass order of maintenance and other things in addition to any other order that is passed in separate proceedings. Any amount paid by the revisionist in this proceedings is certainly liable to be adjusted under section 125 Cr.P.C. which is also pending revision and in the circumstance, present order is not doing prejudice to the revisionist in any manner."
From the perusal of record, it appears that petitioner-husband is owner of a shoe shop and is a healthy person; hence in these circumstances, the maintenance awarded to the respondent no. 3-wife is not excessive.
This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. No interference is called for. However, it is made clear that the observations made by this Court in Ashish Gupta (supra) is binding upon the court concerned and if any amount has been awarded under Section 24 of Hindu Marriage Act, the same shall be adjusted towards the maintenance awarded under Section 125 Cr.P.C.
With these observation, the writ petition is disposed of finally.
Office is directed to send a copy of this order to the court concerned immediately.
Order Date :- 21.8.2018 NS