Court No. - 53
Case :- APPLICATION U/S 482 No. - 24610 of 2018 Applicant :- Sikander Prasad Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ranjeet Asthana Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This application under Section 482 Cr.P.C. has been filed by the husband, against whom the second opposite party who is the wife has filed for maintenance under Section 125 Cr.P.C. The said maintenance application is pending before the Additional District Judge/ F.T.C. Court no.II, Azamgarh (sitting as the Family Court) and is numbered as Case no.108 of 2006, Bulbul vs. Sikander. The present application has been filed with the following relief:-
"i) to stay the further proceeding of Case No.108 of 2006 (Bulbul Vs. Sikander), U/s 125 Cr.P.C.P.S.-Phoolpur, District-Azamgarh pending in the court of learned Family Court Azamgarh, during the pendency of this application;
ii) to set-aside the entire proceeding of CaseNo.108 of 2006 (Bulbul Vs. Sikander), U/s 125 Cr.P.C.P.S.-Phoolpur, District-Azamgarh, pending in the court of learned Family Court Azamgarh in the interest of justice;
iii) to set-aside the impugned Order dated 24.11.2014 & Order dated 29.06.2018 passed in CaseNo.108 of 2006 (Bulbul Vs. Sikander), U/s 125 Cr.P.C.P.S.-Phoolpur, District-Azamgarh, which contain as (Annexure no 7 & 11) to this affidavit is pending in the court of learned Family Court Azamgarh, in the interest of justice. And/ or to pass such other further order which this Hon'ble Court may deem fit and proper facts and circumstances of case."
For the sake of record it may be mentioned that the husband (applicant) approached this Court for a first through Application u/s 482 no.30172 of 2015 praying that an application filed by him being Misc. Application u/s 340 Cr.P.C. dated 16.12.2014 filed in Case no.108 of 2006, Bulbul vs. Sikandar, under Section 125 Cr.P.C. be ordered to be disposed of expeditiously within a determinate period of time and till disposal of the aforesaid application, proceedings of the maintenance case may be kept in abeyance. Apparently, it was the first of attempts by the applicant before this Court to delay disposal of the maintenance case brought by the wife. This is not to say that the husband had not devoted lots of his resources and energy in delaying proceedings before the court of first instance as would be evident from the years that the case has gathered being a matter of the year 2006. This Court by an order dated 08.10.2015 dismissed Application u/s 482 no.30172 of 2015.
A second effort was made by the husband to the same end through Application u/s 482 no.41227 of 2017 filed on 4th December, 2017 again with the same prayer as the one made and refused in Application u/s 482 no.30172 of 2015 vide order dated 08.10.2015. Here also the prayer made was to the effect that the Principal Judge, Family Court, FTC-II, Azamgarh be directed to decide application no. 17Ka filed by the applicant under Section 340 Cr.P.C. in Case no.108 of 2006, Bulbul vs. Sikandar, under Section 125 Cr.P.C. The said Application u/s 482 no.41227 of 2017 is still pending and no effective orders have been passed. It appears that the same was not pressed seriously as on 11.12.2017 and 18.01.2018 it was adjourned, presumably in the absence of the counsel for the applicant.
This Court has summoned the record of Application u/s 482 no.30172 of 2015 and Application u/s 482 no.41227 of 2017. A perusal of the contents of the affidavit filed in support of Application u/s 482 no.41227 of 2017 does not disclose that the applicant had earlier approached this Court through Application u/s 482 no.30172 of 2015 for the same relief as the one sought in Application u/s 482 no.41227 of 2017, that is to say, a direction to the Family Court to decide an application made by him under Section 340 Cr.P.C. seeking to prosecute the wife, a prayer that had been earlier rejected by this Court vide order dated 08.10.2015. The said conduct of the applicant in filing Application u/s 482 no.41227 of 2017 without disclosing the fact that he had earlier filed an Application u/s 482 30172 of 2015 and the result of the said application for the same relief shows that the applicant is a litigant who has, to say the least, not approached the Court with clean hands on an earlier occasion too, relating to the same proceedings that are subject matter of visitation in the present application. It also shows that the applicant, husband has made repeated attempts to delay disposal of the wife’s claim for maintenance by entangling proceedings on issues raised through Misc. Applications of whatever consequence.
Now, in the present Application also the applicant has again made a mention of the application under Section 340 Cr.P.C. dated 16.12.2014, the disposal of which he has sought through two earlier applications under Section 482 Cr.P.C., vide paragraph 12 of the affidavit in support of present Application but has not made any mention of those applications earlier filed to this Court, a fact which he has brazenly suppressed.
This Court, therefore, finds that the applicant has not come with clean hands again to this Court.
The first prayer to the present application made is to set aside the entire proceedings of the case under Section 125 Cr.P.C. being Case no.108 of 2016, Bulbul vs. Sikandar, pending before the Family Court, Azamgarh. The basis urged for this Court to consider such a prayer is not at all within the parameters of this Court’s jurisdiction under Section 482 Cr.P.C. Highly disputed issues of fact have been raised that may be considered as defences if at all at the hearing of the application but in no case the same can afford the applicant a ground to seek quashing of proceedings of the maintenance case or as the prayer is worded, to set aside the proceedings. By the second substantial relief claimed which is numbered as third in the prayer clause, is to set aside two orders passed by the Family Court, one dated 24.11.2014 and the other dated 29.06.2018. By the order dated 24.11.2014, the Family Court has granted maintenance in the sum of Rs.1500/- per month pending decision of the maintenance case. The said order has been passed looking to the fact that the maintenance proceedings are lingering on since the year 2006 and the wife who has no means of sustenance is virtually destituted, this Court does not find any ground to interfere with the order granting interim maintenance in the sum of Rs.1500/- per month.
By the second order impugned dated 29.06.2018, the Family Court has taken steps to enforce the order of maintenance by issuing recovery warrants and non-bailable warrants as the order for interim maintenance has not been complied with and the applicant is in arrears. In the impugned order dated 29.06.2018 it has been recorded that a cheque issued in favour of the wife (opposite party no.2 here) has been dishonoured, and, therefore, recovery warrants and non-bailable warrants have to issue.
This Court does not find any infirmity either in the impugned order dated 24.11.2014 or 29.06.2018, both of which are well within jurisdiction and flawless on facts and law. The said orders are hereby affirmed and this application stands dismissed.
Looking to the fact that the maintenance proceedings are pending for a very long period of time and the sum of interim maintenance awarded against him requires some re-determination which can well be done at the time when final orders are made, subject of course to the second opposite party’s entitlement, it is ordered that the Family Court concerned where Case no.108 of 2006, Bulbul vs. Sikandar is pending shall proceed to decide the said case within three months next positively unless proceedings of the said case have been or ordered to be interdicted by an order of a court of superior jurisdiction.
Let a copy of this order be communicated to the Family Court, Azamgarh through the District Judge, Azamgarh forthwith by the office.
Order Date :- 26.7.2018 Anoop/ Shahroz