Court No. - 53
Case :- APPLICATION U/S 482 No. - 25001 of 2018 Applicant :- Man Singh Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shivarchan Mishra Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Heard Sri Shivarchan Mishra, learned counsel for the applicant and Sri M.P.S. Gaur, leaned A.G.A. appearing for the State.
This application has been filed by Man Singh, who is the husband of the second opposite party, seeking to quash the orders dated 06.03.2018 as well as 07.06.2018, both passed by the Family Court/ F.T.C.-II, Kaushambi in Case no.108 of 2015, Rani Devi vs. Man Singh, under Section 128 Cr.P.C., Police Station Saini, District Kaushambi.
The second opposite party from the applicant was married according to the Hindu rites but have become an estranged couple. The second opposite party moved the Judicial Magistrate, Kaushambi under Section 125 Cr.P.C. by an application dated 19.05.2010 seeking maintenance in the sum of Rs.10,000/- per month from her husband on ground that he is neglecting to maintain her, and, she has no means of sustenance. The said application was contested by the applicant by filing a written statement. The Court after hearing parties by an order dated 11.04.2014 allowed the said application awarding the wife maintenance from the date of order in the sum of Rs.2000/- per month. The order dated 11.04.2014 passed by the Principal Judge, Family Court, Kaushambi in Case no.309 of 2014 (the proceedings being transferred from the Magistrate to the Family Court upon its establishment in district Kaushambi) was put to challenge by the applicant before this Court through Criminal Misc. Application no.11365 of 2016, which admittedly is pending consideration of this Court as asserted in paragraph 6 of the affidavit. It appears that no interim orders have been passed in the said application under Section 482 Cr.P.C. preferred by the applicant against the order dated 11.04.2014 awarding maintenance to the wife.
In the meantime opposite party no.2 has filed an application under Section 128 Cr.P.C. seeking to enforce maintenance order and on that application recovery warrants have been issued by the Family Court on 06.03.2018.
It is also urged further that the applicant is a physically handicapped person but in compliance of recovery warrants deposited a sum of Rs.20,000/- on 02.06.2018. Ignoring such deposit a further order dated 07.06.2018 has been passed issuing the recovery warrants against the applicant. It is these recovery warrants that the applicant has challenged through the present application. Substantive order granting maintenance passed in proceeding under Section 125 Cr.P.C. is already under challenge by the applicant through application under Section 482 Cr.P.C. no.11365 of 2016, that is pending wherein no interim orders appear to have been granted. The present recovery warrants issued through the orders impugned under Section 128 Cr.P.C. are merely a process to enforce the applicant's liability under the order dated 11.04.2014. The recovery warrants are processual in nature, which have not been challenged on any substantive ground. The remedy, if any, available to the applicant is to be sought in Application under Section 482 Cr.P.C. no.11365 of 2016 preferred from the order awarding maintenance under Section 125 Cr.P.C.
No relief can be granted against a mere process. This application accordingly fails and is dismissed.
Order Date :- 25.7.2018 Anoop/ Shahroz