Misc. Case No. 387 of 2019 · High Court
Case Details
1 Neutral Citation No. - 2024:AHC:195765 A.F.R. Reserved on: 11.6.2024 Delivered on: 13.12.2024 Court No. - 78 Case:- CRIMINAL REVISION DEFECTIVE No. - 753 of 2024 Revisionist :- Shabana Bano Opposite Party:- State of U.P. and Another Counsel for Revisionist:- Mujeeb Khan, Naveen Kumar Counsel for Opposite Party:- G.A., M. A. Siddiqui Hon'ble Vinod Diwakar, J. 1. Heard learned counsel for the revisionist-wife, learned counsel for the respondent-husband, learned A.G.A. for the State-respondent, and perused the entire record. 2. This present revision has been preferred seeking enhancement of the maintenance amount awarded by the learned Principal Judge, Family Court, Sonbhadra in Criminal Misc. Case No.387 of 2019, filed by the revisionist-wife on 17.8.20219. 3. Succinctly, the brief facts are that the revisionist-wife and the respondent-husband were married on 4.5.2002, according to Muslim rites and rituals. At the time of marriage, the respondent-husband was serving as a Civil Judge (Junior Division) at the District Court in Sonbhadra. Currently, he holds the position of Special Judge (UP Dacoity Affected Area) in District Etah and previously served as Additional Principal Judge at the Family Court in Jaunpur from 3.8.2019 to 4.7.2022. The revisionist-wife asserts that her parents spent approximately Rs.30 lakhs on the marriage. Additionally, during the engagement ceremony, Rs.11 lakhs were provided to purchase an Indica car; however, the respondent-husband declined to register the car in his name due to his recent judicial appointment. Shortly after 2 the marriage, the respondent-husband allegedly demanded an additional dowry of Rs.20 lakhs from the revisionist-wife's parents. When this demand was not met, he purportedly subjected her to cruelty, including physical assaults, beatings, verbal abuse, and threats of divorce. 4. The revisionist-wife endured all acts of cruelty because her husband was a judge who commanded significant respect in society. To preserve his honour and reputation and hoping that he would eventually change, she initially refrained from filing any complaints or maintenance applications. She also chose not to disclose his conduct to his colleagues or their spouses to maintain the family's honour. The couple has four children from their marriage; Km. Rana Rajak, Km. Nazia Rajak, Km. Subhana, and Isha Rajak, all of whom have been living with the respondent-husband since birth. 5. On 18.11.2013, the revisionist-wife was thrown out of the matrimonial home and was also served with a Talaknama dated 2.12.2013 along with a copy of Mufti’s decision in this regard by post, which was accordingly returned and replied to by the revisionist-wife vide reply dated 30.12.2013 as a bundle of lies and false assertions. 6. Leaving no option for conciliation and compromise, on 20.1.2014, the revisionist-wife filed a Criminal Complaint No.366 of 2014 against her husband Ali Raza and 12 Others, under Sections 498- A, 504, 506, 323, 120-B IPC read with Section 3/4 of the Domestic Violence Act and two cases under Section 125 Cr.P.C. bearing Misc. Case No. 21 of 2014 and Misc. Case No.387 of 2021 on 30.1.2014 and 17.8.2019, respectively, against the respondent-husband before the learned Family Judge, Sonbhadra. 7. In Complaint Case No.366 of 2014, the learned Chief Judicial Magistrate, Sonbhadra, issued summons on 11.9.2015 to Ali Raza
Legal Reasoning
counsel has relied upon the judgments passed by this Court in Parul 1 2 3
Arguments
(respondent-husband), Abdul Rahim, Smt. Jahida Begum, Sohrab Ali, 3 Sabnam, Zareena, Shyara, Neha, Tarrunum, Babloo, Moin, and Smt. Ruksana under Sections 498-A, 323, 504, and 506 of the IPC, read with Sections 3/4 of the Dowry Prohibition Act and Hazrat Ali was summoned under Sections 498-A, 323, 354, 504, and 506 of IPC, read with Sections 3/4 of the Dowry Prohibition Act. 8. The order dated 11.9.2015 was challenged before this Court through Application U/S 482 No.32214 of 2025. On 3.11.2015, this Court referred the matter to the Mediation and Conciliation Center, directing the applicants to deposit a sum of Rs.15,000/- in the name of the revisionist-wife through a demand draft with the Registrar General of this Court within three weeks of the order. The mediation proceedings were to be concluded within three months. The Court also stayed the proceedings in Complaint Case No.366 of 2014 until the next date of listing. 9. Since then, the matter has been listed seven times before this court without any effective hearing, with the last listing on 27.11.2021. Consequently, the trial court proceedings have not advanced. Notably, this Court’s order dated 27.4.2016 clarified that, "it is clarified that the interim order of stay if there is any, is not extended." However, the trial court failed to resume proceedings, repeatedly citing a repetitive order "stay from the High Court" since 2016. The matter has since been listed 65 times without further progress. 10. The Maintenance Application No.21 of 2014 was dismissed for want of prosecution on 1.3.2017. The revisionist-wife filed a restoration application, which was also dismissed. Subsequently, she filed a second application under Section 125 of the Cr.P.C., registered as Case No.387 of 2019. This application was dismissed on 20.5.2022 by the learned Principal Judge, Family Court, Sonbhadra, on the grounds of res judicata. The dismissal order dated 20.5.2022 was 4 challenged before this Court by way of Application U/S 482 No.2559 of 2023 by the revisionist-wife, which was allowed vide order dated 4.4.2023, with the direction to the learned Family Judge, Sonbhadra, to decide the Misc. Application No.387 of 2019 afresh on merits, preferably within a period of six months from the date of production of the certified copy of the order. 11. The learned Principal Judge, Family Court, Sonbhadra, in compliance with this Court’s order dated 4.4.2023, issued a fresh notice to the respondent-husband. However, the respondent-husband failed to appear before the court. Consequently, the second maintenance application was partly allowed ex-parte vide order dated 3.10.2023, granting a maintenance amount of Rs.20,000/- per month, effective from the date of filing of the application before the court. 12. The maintenance order dated 3.10.2023 has not been complied with by the respondent-husband. Consequently, the revisionist-wife filed an Execution Application No.552 of 2023 under Section 128 Cr.P.C. for realization of the maintenance amount. Simultaneously, the revisionist-wife has challenged the impugned order dated 3.10.2023, seeking an enhancement of the maintenance amount before this Court through the present petition on the grounds stated inter alia: (i) the revisionist-wife has diligently and respectfully fulfilled her matrimonial obligations towards the respondent-husband. Out of their wedlock, three female and one male child were born. Despite this, the respondent-husband unjustifiably threw out the revisionist-wife from the matrimonial home on 18.11.2013. Furthermore, without her consent or knowledge, the respondent-husband married another woman who is 22 years younger to him, (ii) the first maintenance application under Section 125 Cr.P.C., filed on 13.1.2014, was erroneously dismissed in default by the learned Family Court under the undue influence of the respondent-husband, who holds the position of a sitting judge, (iii) the revisionist-wife’s restoration 5 application was also improperly dismissed for non-prosecution by the learned Family Court, again under the undue influence of the respondent-husband, (iv) the second maintenance application was dismissed on the grounds of res judicata by the learned Family Court. However, this order was set aside by a co-ordinate Bench of this Court, who directed the case of the revisionist-wife to be decided on merits, (v) without properly considering the actual income and expenses of the respondent-husband, the application under Section 125 Cr.P.C. was only partially allowed, erroneously awarding a maintenance amount of Rs.20,000/- per month, (vi) the impugned ex- parte order has been passed in contravention of the law laid down by the Supreme Court in Rajnesh v. Neha1; Chaturbhuj v. Sita Bai2; and Shabana Bano v. Imran Khan3, (vii) the affidavit of assets and liabilities was neither filed by the respondent-husband nor sought by the learned Principal Judge, Family Court, for the reasons best known to the learned Family Judge. The application specifically averred that the respondent-husband had previously worked as a judge in the Family Court at Jaunpur and is one of the senior-most judges in the district judiciary. This fact was not taken into consideration by the court while deciding the maintenance application, (viii) the learned Principal Judge, Family Court, Sonbhadra, erroneously concluded that the revisionist-wife did not disclose the actual income of the respondent-husband. Consequently, the minimum salary of Rs.1,44,840/- for a district judge at the entry level, as per the second judicial pay commission, was mistakenly taken into account for the maintenance award. Furthermore, in the absence of any reply or affidavit of assets and liabilities from the respondent-husband, the court erroneously concluded that the respondent-husband has no independent source of income except his salary. The revisionist-wife’s