ISHWARI LAL Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) This criminal revision preferred under Section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) is directed against the judgment and order dated 9.9.2005 and 29.9.2005 passed by the Principal Judge, Family Court, Dehradun in Criminal Case No. 425/2002, Smt. Pramod Bala v. Sri Ishwari Lal, whereby the learned court below ordered to issue the recovery warrant against the revisionist through his employer and the application to recall the said recovery warrant was rejected.

(2.) Briefly stated facts of the case are that the respondent no. 2 had filed an application for maintenance under Section 125 CrPC against the revisionist alleging that they are legally wedded couple and five children were born out of the said wedlock and respondent no. 2 has been deserted and neglected by her husband/revisionist, who failed to maintain her despite having sufficient means whereas the respondent no. 2 is a poor lady and is unable to maintain herself. Respondent no. 2 adduced her evidence and thereafter revisionist was called upon to adduce his evidence. Despite seeking number of adjournments, the revisionist did not produce his evidence and ultimately the court proceeded ex parte and vide judgment and order dated 14.12.1987 passed by the CJM, Dehradun the case was decided on merit awarding maintenance allowance to the respondent no. 2 at the rate of Rs. 300/- per month with effect from the date of application i.e. 24.9.1985. Revisionist preferred criminal revision against thee aforesaid judgment and order dated 14.12.1987, which was disposed of by the Sessions Judge, Derhadun vide judgment and order dated 26.8.1988 thereby setting aside the ex parte judgment and order dated 14.12.1987 and the revisionist was given an opportunity to adduce his evidence on the condition that the revisionist shall pay up to date interim maintenance @ Rs. 150/- per month and also imposed a cost of Rs. 150/- as adjournment cost. The revisionist was directed to make compliance of the revisional order within a period of one month failing which the judgment and order dated 14.12.1987 passed by the CJM, Dehradun awarding maintenance of Rs. 300/- per month was to stand. The revisionist did not comply with the aforesaid revisional order and, therefore, learned Magistrate vide order dated 13.12.1988 consigned the file. The revisionist again preferred a criminal revision against the aforesaid order dated 13.12.1988 which was dismissed by the Sessions Judge, Dehradun vide judgment and order dated 2.4.1990.

(3.) Feeling aggrieved, the revisionist preferred a writ petition before the Allahabad High Court against the aforesaid revisional order in which conditional stay was granted vide order dated 24.5.1990 and the parties were directed to appear before the trial court and an option was given by the Court that if the parties give their joint statements that the case be decided afresh on merits, then the trial court may proceed and decide the same as if it has been restored to its original number. But the respondent no. 2 did not give her consent to get the case decided on merits and, therefore, the trial court passed the orders accordingly that the parties are at liberty to get the case decided before the High Court, but the opposite party was directed to pay the amount of maintenance every month. Subsequently, Family Court was constituted and the case was transferred from the Court of Magistrate to the Family Court. Thereafter learned Family Judge passed an order dated 31.7.2002 to the effect that since the revisionist did not comply with the order of the High Court, therefore, the aforesaid conditional stay order passed by the High Court stands vacated and recovery warrant as well as non-bailable warrant were directed to be issued against the revisionist. Before the recovery warrant could be affected or non- bailable warrant could be executed, the revisionist moved an application for recall of the same. On this, learned Family Judge, Dehradun vide order dated 16.7.2003 stayed the execution of the recovery warrant till 18.7.2003. Thereafter revisionist failed to appear in the court and, therefore, Family Judge, Dehradun vide order dated 30.12.2003 again ordered for the issue of the non-bailable warrant and the recovery warrant against the revisionist. Revisionist instead of complying with the recovery warrant, again moved an application for recalling the warrant. Respondent no. 2 filed objections against it. Thereafter, learned Family Judge, Dehradun vide judgment and order dated 9.9.2005 rejected the application of the revisionist and directed him to pay the entire decretal amount of maintenance to the respondent no. 2 and vide order dated 29.9.2005 directed to issue the recovery warrant against the revisionist through his employer for the recovery of Rs. 43,900/-. Hence, this revision.