Court No. - 49
Case :- APPLICATION U/S 482 No. - 6460 of 2018 Applicant :- Karan Singh Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Lal Chandra Mishra Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the parties and perused the record.
The present 482 Cr.P.C. application has been filed against the order dated 18.01.2018, by which the applicant's application under Section 126(2) Cr.P.C. to recall the ex parte order dated 25.06.2016 (passed under Section 125 Cr.P.C.), has been rejected.
Earlier by order dated 28.06.2003, monthly maintenance allowance @ 500/- per month had been awarded by the court below, which according to the applicant had been admittedly paying since then. Subsequently, an application under Section 127 Cr.P.C. had been filed by the opposite party no. 2 claiming enhancement of monthly maintenance allowance on 12.10.2015. However, the applicant did not appear in those proceedings. Consequently, by order dated 02.11.2015, the court below directed the matter to proceed ex parte. Six months thereafter, by order dated 25.06.2016, the monthly maintenance allowance was enhanced to Rs. 4,200/- per month from the date of the order.
It is with reference to this order that the applicant claims he filed an application to recall the said order. Admittedly, after filing the said application, the applicant again did not appear before the court below and consequently, that application was rejected.
Presently, learned counsel for the applicant first submits that the enhancement of monthly maintenance allowance from Rs. 500/- to Rs. 4,200/- per month is excessive inasmuch as the said increase is more than eight folds. He submits it should have been two or three fold at most.
Having considered the arguments so advanced by learned counsel for the applicant, I find that nothing has been shown by way of evidence to suggest that assertion made by the opposite party no.2 before the court below was either wrong or that the applicant did not have the earning capacity as has been estimated by the court below. Accordingly, I do not find any ground to interfere with the estimation of monthly maintenance allowance directed to be paid by the applicant.
In this regard, learned court below has found that the applicant is running a dairy with 35 buffaloes; an oil extraction unit and; a flour mill, besides having an agricultural holding.
Learned counsel for the applicant has disputed the correctness of the finding so recorded by the court below. However, no material has been brought on record and no averment has been made to deny the correctness of the finding recorded by the court below.
The argument of the learned counsel for the applicant that the increase should have been two or three fold is misconceived inasmuch as in the first place the award of monthly maintenance allowance @ 500/- per month was too meagre and insufficient. While making the order under Sections 125, 127 Cr.P.C. the Courts have to be mindful of the requirements to protect minimum human dignity having due regard to the financial and social status etc. of the parties.
Keeping that in mind, I do find that the learned court below has made a reasonable award inasmuch as the enhancement has been made from the date of the order being 25.08.2016. The same does not warrant any interference.
Lastly, it has been submitted by learned counsel for the applicant that he may be granted some time to comply with the order dated 25.06.2016 insofar as it provides for maintenance allowance from that date till February, 2018.
Accordingly, the instant application is disposed of with the following directions:
1. Subject to the applicant furnishing adequate security to the satisfaction of the court below in the shape of other than cash or bank guarantee, by 31.03.2018, further coercive measures adopted against the applicant shall remain stayed, subject to other conditions provided herein.
2. The applicant shall continue to deposit the enhanced monthly maintenance allowance Rs. 4,200/- per month from the period March, 2018 onwards as and when it becomes due, in the manner provided by the court below under the impugned award.
3. Subject to the applicant having complied with the above, the amount of Rs. 77,700/- (approx.), as arrears of maintenance allowance for the period from the date of order shall be deposited in two instalments, first Rs. 37,000/- being payable on or before 30.04.2018 and the balance amount shall be deposited on or before 30.06.2018.
The amount so deposited by the applicant shall be released to the opposite party no. 2 forthwith.
However, it is made clear that in the event of failure on part of the applicant to comply with any part of the order, coercive measures be revived from that stage without any further reference to this Court and recoveries be made first from the security, if any, offered by the applicant in compliance of this order.
Disposed of.
Order Date :- 26.2.2018 A. Singh