MOHAMMAD ARIF Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard the submissions of learned counsel for the revisionist, learned A.G.A. for the State, learned counsel for opposite party No.2 and perused the material on record.

(2.) By means of present revisionist has assailed the order dtd. 20/12/2022, passed by Additional Principal Judge Family Court, Court No. 2, Bulandshahar in Maintenance Case No. 174 of 2017 (Km. Huma Vs. Mohd. Arif) under Sec. 125 Cr.P.C.

(3.) The factual matrix of the case relevant from criminal revision are that applicant Km. Huma moved an application for maintenance under Sec. 125 Cr.P.C before Principal Judge, Family Court through their natural guardian mother Smt. Madina, wife of Mohd. Arif (present revisionist), seeking maintenance to the tune of Rs.5,000.00 per month. The applicant stated that marriage of Smt. Madina and opposite party No.2 took place around year 2000. Smt. Madina, the natural guardian of the applicant was subjected to matrimonial cruelty by opposite party, her husband (Mhd. Arif) and her in-laws due to non-fulfilment of demand of dowry. Four children were born out of their wedlock of which one male child died instantly after birth of three female child namely, Km. Uzma, Km. Rehma and Km. Huma (present applicant) survived. The husband and in-laws of Smt. Madina assaulted her badly and tried to kill her on 19/12/2014 and left her near Busstand, Anupshahar when she was pregnant. She took shelter at her parental place and gave birth to female child on 10/7/2015, her name was christened as Huma. The opposite party (Mhd. Arif) works in a primary school as a teacher and was getting salary around Rs.45,000.00 at the time of filing of application in the year 2017. Initially, Smt. Madina, the mother and guardian of respondent No. 2 filed an application for maintenance against her husband which was registered as Maintenance Case No.155 of 2015, wherein she sought maintenance for herself as well as for her two minor daughters Uzma and Rehnuma from her husband as she was deserted by her husband. The present applicant was not born at that time. The Principal Judge, Family Court Bulandshahr allowed the said application partly vide judgement and order dtd. 10/3/2017 and awarded monthly maintenance to the applicants Smt. Madina to the tune of Rs.4,500.00 and her minor daughters Uzma and Rehnuma to the tune of Rs.1,500.00. Thus, the Court have awarded monthly maintenance to the tune of total Rs.7,500.00 to Smt. Madina and her two daughters. Subsequently, Smt. Madina filed an application for various protection order including monetary relief under Sec. 12 of Protection of Women from Domestic Violence Act before Court of A.C.J.M. Bulandshahr, which was dismissed by order dtd. 29/10/2020 passed by learned A.C.J.M. Bulandshahr. The applicants filed a Criminal appeal under Sec. 29 of Protection of Women from Domestic Violence Act, which was decided ex-parte vide order dtd. 20/7/2022 passed by learned Additional Sessions Judge, F.T.C., Court No.2 Bulandshahr, whereby the appellate court allowed the appeal of Smt. Madina and others and set aside the order dtd. 20/10/2020 passed by learned Magistrate, apart from permitting the applicants to live in one room in the house of opposite party Mhd. Arif and others, the court awarded maintenance to the tune of Rs.5,000.00 and Rs.3,000.00 total to Rs.8,000.00 per month from the date of order of Rs.1.00 lakh lump-sum payment was also awarded as compensation as one time payment to the applicants Smt. Madina and her three minor daughters. The said order was challenged by present revisionist and his family members who were respondents in the case of Domestic Violence Act. In an application under Sec. 482 Cr.P.C. No. 25268 of 2022 Mhd. Arif and 7 others Vs. State of U.P. and 4 others, wherein a co-ordinate Bench of this Court considered the entire issue in the light of judgment of Hon'ble Apex Court in Rajnesh Vs. Neha and another (2021) 2 SCC 324 and affirmed impugned order dtd. 20/7/2022 passed by learned Additional Sessions Judge and dismissed the application filed by present revisionist and his family members. In that order, it was also observed that admittedly, no application has been moved by the applicants to set aside the ex-parte judgment dtd. 20/7/2022 in Application under Sec. 482 Cr.P.C. A prayer was made to quash the order dtd. 20/7/2022 passed in Criminal Appeal No. 33 of 2020 directed against order dtd. 20/10/2020 passed in Misc. Criminal Case No. 55 of 2016 (Arif and others Vs. Smt. Madina and others) under Sec. 12,18,19,20,22 of Protection of Women from Domestic Violence Act, P.S.- Anupshahar, District- Bulandhshar, whereby the appellants were directed to pay Rs.8,000.00 per month and maintenance to the applicants along with Rs.1.00 lakh as one time payment to them. In that case, this Court in order dtd. 16/5/2023, an application under Sec. 482 Cr.P.C., this Court did not sustain the contention of learned counsel for the appellants that the judgment of 20/7/2022 passed in aforesaid criminal appeal No. 33 of 2020 was having overlapping effect as by order dtd. 10/3/2017 in proceeding under Sec. 125 Cr.P.C., the trial Court awarded Rs.4,500.00 to Smt. Madina and Rs.1,500.00 each to her minor daughters, thus the total amount of Rs.7,500.00 per month was awarded as maintenance, which was payable by the husband of opposite party No. 2. This Court also observed that later on, on the birth of third daughter Huma an application under Sec. 125 Cr.P.C. was moved on behalf of her by her mother (Smt. Madina) and a further maintenance amount of Rs.4,000.00 was also awarded to her from the date of order and at the rate of Rs.1,500.00 from the date of filing of application to date of order dtd. 20/12/2022. Thus, total maintenance awarded against the present revisionist and payable to present respondent No. 2, her mother and siblings comes to Rs.19,500.00 per month. This Court placed reliance on contention of opposite party Nos. 2 to 5 that the applicant Mohd. Arif was getting salary of Rs.59,800.00 per month in the year 2019 and this amount must have increased by now and the maintenance of Rs.11,500.00 awarded vide order under Sec. 125 Cr.P.C. and Rs.8,000.00 as the ex- parte judgment dtd. 20/7/2022 passed by learned Additional Sessions Judge in appeal under Sec. 29 of Domestic Violence Act.