Sunil Ghildiyal vs State Of Uttarakhand

Ravindra Maithani, J

The challenge in this revision is made to the orders dated 13.07.2022 and 06.09.2022, passed in Misc. Criminal Case No.86 of 2021, Smt. Antriksha Ghildiyal vs. Sunil Ghildiyal, by the court of Principal Judge, Family Court, Dehradun (for short, “the recovery case”). By the impugned orders, recovery warrants for recovery of Rs. 6,44,000/- have been issued against the revisionist.

Heard learned counsel for the parties and perused the record.

In order to appreciate the controversy, briefly the facts needs a narration.

(i) The respondent no.2, who is wife of the revisionist, filed an application seeking maintenance from the revisionist for herself and her son, which was registered as Case No.218 of 2007, Smt. Antriksha Ghildiyal and another vs. Sunil Ghildiyal in the court of Principal Judge, Family Court, Dehradun (for short, “the case”).

(ii) The case was decided on 02.12.2008 and the maintenance was granted to the child of the parties, but the respondent no.2 was denied maintenance.

(iii) The order dated 02.12.2008, passed in the case was challenged by the respondent no.2 in Criminal Revision No.38 of 2009 (for short, “the revision”) before this Court. The revisionist was served in that revision, but he did not appear. The revision was decided on 20.02.2020 and the revisionist, in the instant case, has been directed to pay Rs. 4,000/- per month to the respondent no.2. Accordingly, the order dated 02.12.2008, passed in the case has been modified.

(iv) In between the respondent no.2 also filed an application under Section 127 of the Code of Criminal Procedure, 1973 (for short, “the Code”) for enhancement of maintenance granted on 02.12.2008 in the case. Based on this application under Section 127 of the Code, the proceedings of the Misc. Case No. 170 of 2011 was instituted in the court of Principal Judge, Family Court, Dehradun, which was decided ex parte on 20.01.2014 and the revisionist was directed to pay Rs. 6,000/- per month to his son.

(v) After the order of this Court dated 20.02.2020, passed in the revision, the respondent no.2 moved an application for recovery of maintenance, which is basis of the recovery case. In the recovery case, the revisionist appeared and filed objections. On 08.10.2021, the court directed the respondent no.2 to file affidavit with regard to her liability and assets. It appears that in that recovery case subsequently, the revisionist did not appear and on 13.07.2022 and on 06.09.2022, the court directed issuance of recovery warrants. These orders are impugned.

Learned counsel for the revisionist would submit that the recovery of arrears for more than one year cannot be made. He would also raise the following points also in his submissions:-

(i) The respondent no.2 has been staying separately without any sufficient cause.

(ii) In the recovery case, the court on 08.10.2021 had directed the respondent no.2 to file the affidavit of his assets and liabilities, but it has not been filed.

(iii) Learned counsel for the revisionist would submit that efforts for mediation could be useful in this case.

The Court wanted to know, as to what was the objections filed by the revisionist in the recovery case? Reference has been made to Annexure No.6 to the revision.

Learned counsel for the revisionist would submit that, in fact, the amount of maintenance which was granted to the child of the parties on 02.12.2008 was subsequently enhanced to Rs. 6,000/-, but this fact was concealed by the respondent no.2 in the revision before this Court. This was one of the objections.

The Court wanted to know, is there any other objection to the recovery proceedings? The reply is that without any cogent reason the respondent no.2 is staying separate and at present, it is argued that the revisionist is jobless.

Initially on 02.12.2008, the respondent no.2, the wife was denied maintenance, but on 20.02.2020, the Court allowed the revision and modified the order dated 02.12.2008, passed in the case. The Court directed the revisionist to pay Rs. 4,000/- per month to the respondent no.2, as well. The period of one year may be counted from this date. Prior to it, in fact, the respondent no.2 did not have any occasion to seek any recovery. It is within a year from that date.

In so far as the reasons for living separate is concerned, they are the matters, which definitely could have been dealt with while awarding maintenance to the wife.

The objections that the respondent no.2 did not reveal that the child is being paid maintenance by the revisionist has no bearing in this case. It is no objection at all. The Court has directed the revisionist to pay maintenance to the respondent no.2, his wife. What is the amount of maintenance the revisionist is paying to his son has nothing to do with it. It may at the most have some collateral assistance. But, non-disclosure of the amount which the child has been receiving is not a ground for stopping the recovery process.

It is true that in the recovery case on 08.10.2021, the court directed the respondent no.2 to file an affidavit in support of the assets and liabilities, but such affidavit is not required at all. Even despite that order, the court had issued recovery warrants.

It is true that in the recovery proceedings the revisionist had filed his objections, but on subsequent dates, he did not appear. Even otherwise, this Court has considered the objections, they have no merits for acceptance.

In view of what is stated in the foregoing paragraphs, this Court is of the view that there is no reason to make any interference in the impugned orders. Accordingly, the revision deserves to be dismissed.

The revision is dismissed.