Ram Lakhan Gupta vs State of U.P. and Others

Yogendra Kumar Sangal, J.—This petition has been filed by the Petitioner with the prayer to set aside the judgment and order dated 02.07.1998 passed in Criminal Case No. 2/98 and order dated 14.07.2004 passed in Criminal Revision No. 150/98 as well as in Criminal Revision No. 181/98 contained in Annexures No. 1 to 3 to the petition.

Heard learned Counsel for the Petitioner, learned AGA for the State and perused the record.

Although counter affidavit was filed on behalf of the Respondents No. 2 and 3 but nobody appeared on their behalf.

An application u/s 125 Code of Criminal Procedure was moved on behalf of the Respondents No. 2 and 3 and one Sandeep for direction to the opposite party/Petitioner for paying the monthly allowance for their maintenance. Written statement was filed on behalf of the Petitioner in the trial court. After recording the evidence adduced on behalf of the parties and hearing the parties and perusing the record by order dated 02.07.1998, learned Magistrate had allowed the application u/s 125 Code of Criminal Procedure and ordered for paying maintenance amount by the Petitioner Rs. 500/-per month to the opposite party No. 2 and 3 from the date of the order of the court. Aggrieved by this order, Petitioner has filed a Revision No. 150/1998 and Smt. Kiran have also filed a Revision No. 181/98 challenging the order of the trial court saying that this should have been awarded from the date of the presentation of the application. Revision filed by the Petitioner was dismissed and on the other hand revision filed by the Respondent was allowed. Aggrieved by both these orders, this petition u/s 482 Code of Criminal Procedure was moved.

At the time of admission of the petition, it reveals from the order dated 06.10.2004 passed by this Court that the Petitioner has pressed the petition and challenged the order of learned Magistrate only on the one point that learned Magistrate on the application u/s 125 Code of Criminal Procedure had allowed the maintenance to the opposite party No. 2 and 3 from the date of the order. This order of the learned Magistrate was challenged only by the opposite party No. 2 by filing the revision. Opposite party No. 3 was major and she had not filed any revision against the order of the learned Magistrate. The only ground for challenge by the learned Counsel for the Petitioner was that revisional court could not have modified the order of the magistrate with regard to opposite party No. 3. This Court had directed to the Petitioner to file copy of the memo of the revision and also evidence of age of opposite party No. 3. Along with the supplementary affidavit dated 11.10.2004 Petitioner had filed the copy of the revision filed by all the three applicants of the application u/s 125 CrPC. This copy was also filed by the Respondents along with counter affidavit.

Learned AGA argued that copy of this revision petition clearly shows that all the three applicants of application u/s 125 Code of Criminal Procedure have challenged the findings of the trial court on the point that maintenance amount was wrongly granted from the date of the order, it should have been granted from the date of the application u/s 125 CrPC. The learned AGA argued that the sole ground of challenge of the order of the learned court below is not of any merit because from the copy of the grounds of revision clearly states that the same was challenged by all the three applicants of the application u/s 125 CrPC. This argument of the learned AGA cannot be said without force.

However, I have gone through the judgment delivered by the learned Magistrate on the application u/s 125 Code of Criminal Procedure as well as the judgment delivered by the learned Sessions Judge in Criminal Revision No. 150/98 Ram Lakhan v. Smt. Kiran and Ors. and Revision No. 181/98 Smt. Kiran and Ors. v. Ram Lakhan. No sufficient reasons were given by the learned Magistrate why the order of maintenance was granted from the date of the order on the application u/s 125 CrPC. The learned Sessions Judge in revision No. 181/98 had given detailed and sufficient reasons why the maintenance should have been granted from the date of application not from the date of the order on the application u/s 125 CrPC. No illegality, invalidity and impropriety had been shown on behalf of the Petitioner in the order passed by the learned Sessions Judge in Revision No. 181/1998 during the course of arguments.

Learned Counsel for the Petitioner argued that the revisional court has not taken into consideration that what was the income of the Petitioner at the time when the application u/s 125 Code of Criminal Procedure was moved and order of grant of maintenance from the date of application was excessive. What was the income of the applicant-Petitioner at the time when application u/s 125 Code of Criminal Procedure was moved, it is not clear from the affidavit filed on his behalf along with the petition u/s 482 Code of Criminal Procedure even in the supplementary affidavit filed on his behalf. There was any change of income between the date of filing the application and delivery of the order, it is not clear from the record. Hence, no benefit of this argument can be allowed to the Petitioner in the matter. However, only minor son and daughter are entitled for the maintenance under the provisions of Section 125 CrPC. The Petitioner is free to move an application u/s 127 Code of Criminal Procedure before the learned Magistrate showing the present position and age of both the applicants for variation in the amount of maintenance for Kumari Renu and Sandeep in the matter and the learned Magistrate is free to take decision on the application if moved on behalf of the applicant after giving opportunity of hearing to both the parties.

Seeing the facts and circumstances of the case and considering the arguments of the learned Counsel for the parties and discussions made above, I do not find any merit in the present petition u/s 482 CrPC. Accordingly, the petition is hereby dismissed. Stay order, if any, shall stand vacated. Inform the trial court.