Pankaj Kushwaha vs Additional Session Judge Court No. 6 Unnao and Others

Raj Mani Chauhan, J.—Heard learned Counsel for the Petitioner and learned A.G.A. for the State as well as perused the documents available on record.

This writ petition under Article 226 of the Constitution of India has been filed by the Petitioner for quashing the order dated 20.10.2010 passed by the learned Additional Sessions Judge, Court No. 6, Unnao in Criminal Revision No. 94/10 Pankaj Kishwaha v. Smt. Urmila and Anr., order dated 08.4.2010 passed by the learned Additional Chief Judicial Magistrate, Court No. 2, Unnao in Criminal Case No. 321/10 (Smt. Urmila v. Pankaj Kushwaha), u/s 125 of the Code of Criminal Procedure (hereinafter referred to as the ''Code'') as well as the order dated 11.3.2010 passed by the learned Additional Sessions Judge, Court No. 5, Unnao in Criminal Revision No. 195/2009 Smt. Urmila v. Pankaj Kushwaha.

From a perusal of the documents available on record, it appears that the opposite party No. 3-Smt. Urmila Devi filed a Criminal Case No. 1978/2009, u/s 125 of the Code against the Petitioner before the learned Additional Chief Judicial Magistrate, Court No. 2, Unnao for maintenance allowance which was rejected by the learned Additional Chief Judicial Magistrate vide order dated 02.12.2009. The opposite party No. 3 being aggrieved by the impugned order preferred criminal revision before the Sessions Judge, Unnao which was allowed by the learned Additional Sessions Judge, Court No. 5, Unnao vide impugned judgment and order dated 11.3.2010 and the matter was remanded back to the learned Additional Chief Judicial Magistrate. The learned Additional Chief Judicial Magistrate thereafter allowed the application of the opposite party No. 3 vide impugned judgment and order dated 08.4.2010 and directed the Petitioner to pay maintenance allowance @ Rs. 1500/-per month. The Petitioner being aggrieved by the impugned order preferred criminal revision before the Sessions Judge, Unnao which was partly allowed by the learned Additional Sessions Judge, Court No. 6, Unnao vide impugned judgment and order dated 20.10.2010 and reduced the maintenance allowed from Rs. 1500/-per month to Rs. 700/-per month. The Petitioner being aggrieved by the impugned order has approached before this Court by way of filing the present writ petition.

The submission of learned Counsel for the Petitioner is that the application has been allowed by the learned Additional Chief Judicial Magistrate from the date of the application while it should have been allowed from the date of order. Learned Counsel further submits that the Petitioner had filed a suit for divorce against the opposite party No. 3 which has been decreed by the learned Civil Judge (Sr. Division), Unnao and the marriage between the Petitioner and the opposite party No. 3 has been dissolved. The opposite party No. 3 herself is living separate on her own sweet will, therefore, she was not entitled to any maintenance allowance. The impugned order passed by the learned Additional Chief Judicial Magistrate and the learned Additional Sessions Judge are not based on proper appreciation of evidence, therefore, the impugned orders are bad in the eye liable and are liable to be quashed.

Learned A.G.A. opposed the petition.

Considered the submissions of learned Counsel for the Petitioner and learned A.G.A.

As regards the application allowed by the learned Additional Chef Judicial Magistrate from the date of application, the application can be allowed by the learned Additional Chief Judicial Magistrate.

As regards, the finding of fact by both the courts below i.e. Additional Chief Judicial Magistrate and Additional Sessions Judge, both the courts below after going through the evidence led by both the parties have allowed the application and ordered for payment maintenance allowance by passing cogent and reasoned orders. The learned Additional Sessions Judge has already taking lenient view while reducing the maintenance allowed vide impugned judgment and order dated 20.10.2010 which in my opinion does not suffer from any illegality as such it does not call for any interference.

The writ petition is devoid of any merit and is liable to be dismissed.

Accordingly, the writ petition is dismissed.