Court No. - 49
Case :- APPLICATION U/S 482 No. - 10522 of 2018 Applicant :- Pradeep Kumar @Pradeep Kumar Verma Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rahul Saxena Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard Sri Rahul Saxena, learned counsel for the applicant, Sri Hanuman Deen Varma, learned counsel for the opposite party no.2 and learned AGA for the State as also perused the record.
The present application U/s 482 Cr.P.C. has been filed against the order passed by the Principal Judge, Family Court, Sant Kabir Nagar dated 08.03.2018 in Misc. Case No. 226/11 of 2016 (Smt. Kalpana Chaudhary Vs. Pradeep Kumar). By that order, the learned court below has rejected the delay condonation application filed in the application U/s 126 (2) Cr.P.C. to recall the exparte order dated 11.04.2016 providing for maintenance allowance @ Rs. 3,500/- per month to the opposite party no.2 from that of that order.
Learned counsel for the applicant submits that the applicant had no knowledge of the proceedings under Section 125 Cr.P.C., therefore, he could not participate in the same. He then submits that the applicant gained knowledge of the proceedings only during the course of recovery proceeding initiated against the present applicant.
The aforesaid contention was raised by the applicant in the delay condonation application. The learned court below has considered the aforesaid explanation and thereafter rejected the same on the reasoning contained in the order dated 08.03.2018.
According to the learned court below, the applicant had been issued a notice by registered post in the proceeding under Section 125 Cr.P.C., on 24.07.2015. The said notice was neither returned unserved nor the applicant was appeared in pursuance thereto. Still service was tried to be effected through publication. Thereafter, service was deemed sufficient. Consequent to the service being thus deemed sufficient, the exparte order dated 11.04.2016 was passed whereby maintenance allowance @ Rs. 3,500/- per month has been awarded.
Thereafter, in the recovery proceeding, pursuant to the application dated 04.06.2016 filed by the opposite party no.2 for recovery of the maintenance allowance, further notices were issued to the applicant through registered post dated 28.09.2016 and 22.10.2016.
The learned court below had further noted that all three notices had been dispatched to the applicant at the same address as had been given in the application filed by the opposite party no.2.
It has been thus inferred by the learned court below that the applicant had knowledge of the proceedings under Section 125 Cr.P.C. and that the explanation furnished by the applicant that he never received notice issued to him earlier, is not believable.
No evidence was led to establish that notice issued to the applicant actually had not been served on him though such notices had been dispatched at the correct address through registered post mode. Therefore, there does not appear to exist any infirmity in the inference drawn by the court below that such notice had actually been served.
Even otherwise, on merits, it is seen that the learned court below has awarded maintenance allowance @ Rs. 3,500/- per month from the date of order being 11.04.2016, whereas the opposite party no.2 had filed an application for such maintenance allowance on 30.06.2015 .
Section 125 Cr.P.C. is a measure to advance social justice. Certain minimum amounts are required to be awarded in favour of the claimants to preserve human life and dignity and to prevent vagrancy.
At the same time, it has not been disputed that the applicant is an able bodied person and the therefore, he has the means to earn sufficiently well to provide for maintenance allowance @ Rs. 3,500/- per month as had been awarded by the court below.
The argument advanced by learned counsel for the applicant that some concession may be made in the award of monthly maintenance allowance does not merit any interference, keeping in mind the ever rising cost of living index and the fact that the maintenance allowance @ Rs. 3,500/- per month may be just enough to ensure that the purpose of Section 125 Cr.P.C. is not defeated.
Lastly, it has been submitted by learned counsel for the applicant that some time may be allowed to the applicant to make good the deficiency that has already occurred in compliance of the exparte order dated 11.04.2016.
Accordingly, the instant application is disposed of with the following directions:
1. Subject to the applicant furnishing adequate security to the tune of Rs. 90,000/- to the satisfaction of the learned court below in the shape of other than cash or bank guarantee by 16.04.2018, further coercive measures adopted against the applicant shall remain stayed, subject to other conditions provided herein.
2. The applicant shall continue to pay the monthly maintenance allowance from the period from April, 2018 onwards as and when it becomes due, in the manner provided by the learned court below, under the impugned award.
4. Subject to the applicant having complied with the above, the amount of Rs. 84,000/- (approximately) being arrears of maintenance allowance for the period, from the date of order till March, 2018 shall be deposited in five bi-monthly instalments, such instalments being payable on or before 31.05.2018, 31.07.2018, 30.09.2018, 30.11.2018 and 31.01.2019 respectively. The first four instalments would be of Rs. 20,000/- each while the fifth/last instalment would be for the balance amount.
All the amounts when deposited by the applicant in the court below 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 from the applicant in compliance of this order.
Order Date :- 30.3.2018 Lbm/-