Gufran vs State of U.P. and Others

Hon''ble Surendra Kumar, J.—The petitioner Gufran who is husband of Smt. Shabana, opposite party No. 2, complainant has filed the writ petition under Article 226 of the Constitution of India to quash the order dated 7.1.2012 passed by Session Judge, J.P. Nagar in Criminal Revision No. Nil of 2012 (Gufran Vs. State of U.P. and others) and also order dated 7.10.2011 passed by Judicial Magistrate/Civil Judge(Junior Division-1), J.P. Nagar in Criminal Case No. 2216 of 2008, u/s 125 Cr.P.C., P.S. Rajjabpur, District J.P. Nagar.

Smt. Shabana herself and on behalf of her two minor sons Mohd. Jaed and Mohd. Riha filed an application under Section125 Cr.P.C., P.S. Rajjabpur, District J.P. Nagar before the Judicial Magistrate, J.P. Nagar stating therein that she was got married to Gufran according to Muslim rites and sufficient dowry was given in the marriage by her parents. Husband and his other family members were not happy with the dowry given, and since the husband started torturing her and demanded Motorcycle and Buffalo in dowry. Two sons were born out of the wedlock. On 15.7.2008 she was driven by her husband alongwith two sons from her matrimonial house only in the worn clothes. She is unable to maintain herself and her two minor sons and she has no source of income. Her husband has agricultural land and has some vehicles which he plied on hire. Her husband is earning about Rs. 30,000/- per month from all sources and is capable to maintain her and her two sons.

Notice was sent to the husband and he refused to accept the notice and thus ex-parte proceeding was started. Ultimately the learned court relying on the affidavit of the wife vide judgment and order dated 6.6.2010 allowed the said application and directed the husband to pay Rs. 1200/- per month as maintenance to his wife and Rs. 400/- each to his sons from the date of the application.

The husband thereafter moved an application u/s 126(2) Cr.P.C. before the magisterial court for quashing ex-parte judgment and order showing his ignorance about the maintenance case on account of non-service of notice upon him. Learned magistrate vide order dated 7.10.2011 allowed the application of the husband and quashed the order dated 6.6.2010 subject to condition that the husband shall pay Rs. 2000/- per month as interim maintenance to the wife and other minor sons and shall also cooperate in the disposal of the maintenance case on merit.

The husband challenged the order dated 7.10.2011 before the Session Judge, J.P. Nagar through the aforesaid criminal revision. The revision was also dismissed by Session Judge vide order dated 7.1.2012 at the admission stage itself with the observation that the order passed by the magistrate was perfectly legal and correct one and the magistrate was fully competent to set-aside the ex-parte order of maintenance directing the husband to pay interim maintenance to his wife.

Thus both the aforesaid orders passed by courts below, are under challenge in the present writ petition. The main submission of learned counsel for the petitioner is that the magistrate is not competent to pass order of interim maintenance while setting aside the ex-parte judgment and order passed u/s 125 Cr.P.C.

Learned A.G.A. opposing the plea has submitted that wife filed maintenance case against the husband in the year 2008 and the husband intentionally denied the notice sent by the court and allowed the case to proceed ex-parte. Secondly the maintenance case was decided ex-parte vide judgment and order dated 6.6.2010. Thus the wife had to contest the case for maintenance for herself and her minor sons in the magisterial court for more than two years and when husband did not cooperate, the Magistrate was left with no option other than to decide the case ex-parte directing maintenance.

It is admitted by learned counsel for the petitioner that the husband has not paid a single penny for maintenance to his wife and two sons since beginning of the matter. The reason for non-payment argued by learned counsel for the petitioner is that correct procedure was not adopted in this case by the courts below hence the husband did not pay any maintenance amount.

There is no illegality or any kind of legal error in the judgment of both the courts below. Both the courts after citing sufficient reasons have passed the impugned orders. There is no sufficient ground to interfere with the impugned judgment and order. The husband is just to Rs. 2000/- per month for maintenance of his wife and two children in the time when the prices are spiralling high and this amount can, by no imagination be said to be excessive particularly when the husband has sufficient means including the agricultural income to pay.

The writ petition is dismissed.