Court No. - 53
Case :- APPLICATION U/S 482 No. - 25111 of 2018 Applicant :- Sudhir Kumar Seth Bagga Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Yogendra Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Heard learned counsel for the applicant and the learned A.G.A. for the State.
This application u/s 482 Cr.P.C. has been filed seeking to challenge an order dated 05.07.2018 passed by the Additional Sessions Judge/ Fast Track Court no.2, Ghaziabad (sitting as the Family Court) in Execution Case no.274 of 2013, Smt. Ruchi Seth Bagga vs. Sudhir Seth Bagga, under Section 125(3) Cr.P.C., Police Station Kavinagar, District Ghaziabad.
The sole applicant and opposite party no.2 are an estranged couple. An application was filed under Section 125 Cr.P.C. being Case no.43 of 2006 seeking grant of maintenance for herself and parties' minor son Rohan under Section 125 Cr.P.C. The application for maintenance came to be allowed by an order dated 11.09.2006 passed by Judicial Magistrate, Court no.2, Ghaziabad ex parte in Case no.43 of 2006 awarding a sum of Rs.2000/- to the wife and Rs.2000/- to the parties' minor child from the date of application.
It appears that the maintenance order dated 11.09.2006 remained uncomplied with. The second opposite party, therefore, moved Execution Case no.42 of 2009 under Section 125(3) Cr.P.C. The applicant challenged the proceedings of the Execution Case before this Court vide Criminal Misc. Application no.9973 of 2009 u/s 482 Cr.P.C., wherein an order dated 29.04.2009 was passed issuing notices to the second opposite party and by an interim order directing the applicant to deposit a sum of Rs.30,000/- within four weeks from the date of order and the remainder of the amount due under the maintenance order until that time in three equal installments in three months next and provided that if that is done further proceedings in the execution case shall remain stayed till next date of listing.
It is averred that in compliance of the said order the applicant deposited a sum of Rs.76,000/-. Thereafter, a compromise was arrived at between parties, a copy of which is filed as Annexure 4 to the affidavit outside court. It is claimed that once again an execution case was filed numbered Execution Case no.397 of 2012 claiming total sum of Rs.2,08,000/- towards arrears of maintenance. It appears that there is a slight confusion regarding numbering of the execution case but from a reading of the application made for execution of the maintenance order dated 30.04.2012 it transpires that after deposit of a sum of Rs.72,000/- pursuant to the interim order passed by this Court last mentioned in the 482 Application, the applicant again fell into arrears of maintenance. Thus, the wife giving a complete break up of the arrears of maintenance indicated that for the period 9th February, 2011 to 18th January, 2012, that is to say, for 11 months a sum of Rs.44,000/- were due at the rate of Rs.4,000/- per month for herself and her minor child and Rs.64,000/- were due on account of arrears from March, 2006 to January, 2012, of which only Rs.76,000/- were paid making for a sum of Rs.1,64,000/- in arrears. A complete break up of the arrears is given in the application dated 30.04.2012 that appears to have been made in the execution case of originally filed which has been re- numbered overtime, claiming as on 30.04.2012, a total sum of Rs.2,08,000/-. The precise figure of arrears of maintenance are a matter of account to be examined before the executing court.
This Court finds that by the impugned order dated 05.07.2018 all that the Family Court has said is the husband has deposited Rs.76,000/- pursuant to the order of this Court in the execution case presently numbered as Execution Case no.274 of 2013, and, that the applicant, husband may deposit balance due under the maintenance order beyond what was deposited in compliance of the orders passed by this Court earlier. Reference to the orders of this Court is to the one dated 29.04.2009 passed in Criminal Misc. Application no.9973 of 2009. This Court does not find that there is any abuse of process or illegality in the said order.
Learned counsel for the applicant has harped much on the compromise dated 20.04.2010 arrived at between parties, which according to him concludes all issues involved in the maintenance order pending in the Execution Case.
This Court on perusal of the said compromise finds that it is a compromise privately recorded and proceedings of the Execution Case have not been disposed of in terms of the said compromise accepting it. Moreover, the terms of the said compromise are also executory inasmuch as imposes obligations upon the husband to provide maintenance to his wife in the sum of Rs.2000/- per month. There is no such term in the said compromise which may wipe out rights under the maintenance order dated 11.09.2006. In addition, this Court finds that application under Section 482 Cr.P.C. no.9973 of 2009, wherein interim order dated 29.04.2009 was passed and challenge was laid to the maintenance order dated 11.09.2006 passed by the Magistrate ex parte, came to be dismissed on merits by this Court vide an order dated 04.05.2016, a copy of which is annexed as Annexure 9 to the affidavit filed in support of the application. Thus, as the rights of the parties stand, the second opposite party is entitled to all the fruits of the maintenance order dated 11.09.2006 passed by the Judicial Magistrate, Ghaziabad under Section 125(3) Cr.P.C., which is to be executed in the manner provided by law and whenever the same is violated upon a failure by the husband to abide by his recurring liability under the said order until the said order is cancelled in accordance with law.
Considering the aforesaid facts and circumstances, there is no infirmity in the order impugned dated 05.07.2018 calling for interference by this Court under Section 482 Cr.P.C.
This Application fails and is dismissed with a direction to the Family Court to take immediate steps for recovery all arrears of maintenance remaining unpaid by the applicant in accordance with law.
Let a copy of this order be communicated to the Family Court concerned by the office forthwith.
Order Date :- 26.7.2018 Anoop/ Shahroz