Agra (Smt. Kanchan v. Yogesh Soni others), passed in Case No

1. Heard Sri Ajay Shyam Prajapati (AoR No. A/A 0404/2020) holding brief of Sri Hitesh Pachori, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the impugned order dated 20.09.2024 passed by the Ld. Civil Judge (J.D.)/F.T.C.-1, Agra (Smt. Kanchan Vs. Yogesh Soni & others), passed in Case No. 7488/2024, under Section 6(1) Domestic Violence Act, Police Station New Agra, District Agra.

3. Learned counsel for the applicant has submitted that the applicant happens to be the father-in-law of O.P. No.2. The marriage of the son of the applicant stood solemnized with O.P. No.2 on 05.12.2012. Submission is that proceedings under Section 12 of the D.V. Act was initiated by the O.P. No.2, in which on 03.12.2015, an order came to be passed for granting of maintenance to the tune of Rs.5,000/-. The order dated 03.12.2015 was subject matter of challenge by way of filing of an appeal under Section 29 of the Act and the order dated 03.12.2015 was set aside with the condition that the applicant shall not only pay Rs.3,000/- per month to the wife, but she shall also be liable to pay arrear of amount accruing since 03.12.2015. The said order was subject matter of challenge in Application U/s 482 No. 21554 of 2017, (Yogesh Soni v. State of U.P.), in which on 05.09.2017, the following order has been passed: - "This application u/s 482 Cr.P.C. has been filed on behalf of applicant seeking the quashing of order dated 29.5.2017 passed by learned Additional Session Judge, Court No.17, Agra in Criminal Appeal No.48/2017 (Yogesh Soni and others vs. State of U.P.) and ex-parte order dated 3.12.2015 passed in Complaint case No.412/2015 (Smt. Kanchan vs. Yogesh), u/s 12 of Domestic Violence Act, Police Station-New Agra, District-Agra. Heard learned counsel for the applicant and learned A.G.A. and also perused the record. Submission of counsel for the applicant is that the lower appellate court has passed a very anomalous order dated 29.5.2017 whereby even though it has set aside the order dated 3.12.2015 passed by the court below but the same has been done on the condition that the the applicant shall pay not only Rs.3,000/- per month to the wife but he shall also be liable to pay up the arrear amount accruing since 3.12.2015. Further submission is that such a direction is so apparently going to gravely prejudice the prospect of the proceedings of the Domestic Violence Act and in fact there would be hardly any chance to the same proceedings to be concluded fairly in the light of the observations and the relief that has already been granted to the wife. The order passed by the court below on 03.12.2015 was without granting adequate opportunity to the applicant of being heard. Matter requires consideration on facts and law both. Notice on behalf of opposite party No.1 has been accepted by learned A.G.A. Issue notice to the opposite party no.2 returnable within four weeks. Opposite party no.2 may file counter affidavit within three weeks after the service. Learned AGA may also file counter affidavit within the same period. Rejoinder affidavit may be filed within two weeks thereafter. List this matter immediately after expiry of the aforesaid period before the appropriate bench. The operation of impugned order dated 29.5.2017 passed by learned Additional Session Judge, Court No.17, Agra in Criminal Appeal No.48/2017 (Yogesh Soni and others vs. State of U.P.) shall remain in abeyance provided and with the condition that the applicant shall keep on paying Rs.3000/- per month to the wife as a matter of interim maintenance for her sustenance, till further orders by this Court. It is clarified that if the applicant fails to comply with the aforesaid condition, the interim order of stay passed by this Court shall be deemed to have been vacated automatically. It is further clarified that this order will remain subject to the final order that may be passed by this Court after hearing the matter on merits."

4. Learned counsel for the applicant has submitted that proceedings under Sub-Rule 5 of Rule 6 of the Protection of Women from Domestic Violence Act, 2006 was also initiated by O.P. No.2 and thereafter, it appears that recovery warrants have been issued. Learned counsel for the applicant has submitted that the applicant herein preferred an application on 22.09.2023 before the court of FTC-Ist, Agra in the said proceedings coming up with a stand that the husband of the O.P. No.2 and the son of applicant herein is living all alone and the applicant is an aged person and he has nothing to do with the recovery proceedings, as he has disowned his son. On the said application, an order came to be passed on 20.11.2023, which is at Page-46 of the paper-book. Thereafter another application came to be preferred by the applicant on 19.09.2024, in which on 20.09.2024, the following order was passed: - "पतቔኋवलली कके अवललोकन सके ऐस ्ቚतलीत हलोतቔኋ हहै कक ्ቚቔኋरቕኍ दቔኋरቔኋ अपनके पपुत कलो कछिपቔኋयቔኋ जቔኋ रहቔኋ हहै। ्ቚቔኋरቕኍ दቔኋरቔኋ पपुत कके हቔኋल कनवቔኋस कके ससंबसंध मम स्वयसं कलोई जቔኋनकቔኋरली नहीሻ दली जቔኋ रहली हहै। उपरलो्ሹ आधቔኋर पर ्ቚቔኋ०पत खቔኋररज ककयቔኋ जቔኋतቔኋ हहै। "

5. Learned counsel for the applicant while questioning the order dated 20.09.2024 has submitted, that once the applicant has disowned his son, then no liability whatsoever can be fastened and is being harassed in all possible manner, as recovery warrant is being executed against him.

6. Learned A.G.A. on the other hand submits that once there happens to be an order dated 20.11.2023 and 20.09.2024 that recovery warrant is not being executed against the applicant, however, since the address shown in the complaint was the place where the applicant is residing and the whereabouts of the husband of O.P. No.2 and the son of the applicant is not traceable, thus police is visiting in order to execute the warrants, no cause of action whatsoever has been arisen.

7. Having heard the submissions so made across the Bar as well as the fact that there is no warrant issued against the applicant, as per the records, and there happens to be two orders dated 20.11.2023 and 20.09.2024, which itself shows that recovery warrants are not being executed against the applicant, thus no cause of action has arisen.

8. The application accordingly dismissed at this stage. In case, the order is passed or recovery is being executed against the applicant, he may approach again. Order Date :- 9.5.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad

1. Heard Sri Ajay Shyam Prajapati (AoR No. A/A 0404/2020) holding brief of Sri Hitesh Pachori, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the impugned order dated 20.09.2024 passed by the Ld. Civil Judge (J.D.)/F.T.C.-1, Agra (Smt. Kanchan Vs. Yogesh Soni & others), passed in Case No. 7488/2024, under Section 6(1) Domestic Violence Act, Police Station New Agra, District Agra.

3. Learned counsel for the applicant has submitted that the applicant happens to be the father-in-law of O.P. No.2. The marriage of the son of the applicant stood solemnized with O.P. No.2 on 05.12.2012. Submission is that proceedings under Section 12 of the D.V. Act was initiated by the O.P. No.2, in which on 03.12.2015, an order came to be passed for granting of maintenance to the tune of Rs.5,000/-. The order dated 03.12.2015 was subject matter of challenge by way of filing of an appeal under Section 29 of the Act and the order dated 03.12.2015 was set aside with the condition that the applicant shall not only pay Rs.3,000/- per month to the wife, but she shall also be liable to pay arrear of amount accruing since 03.12.2015. The said order was subject matter of challenge in Application U/s 482 No. 21554 of 2017, (Yogesh Soni v. State of U.P.), in which on 05.09.2017, the following order has been passed: - "This application u/s 482 Cr.P.C. has been filed on behalf of applicant seeking the quashing of order dated 29.5.2017 passed by learned Additional Session Judge, Court No.17, Agra in Criminal Appeal No.48/2017 (Yogesh Soni and others vs. State of U.P.) and ex-parte order dated 3.12.2015 passed in Complaint case No.412/2015 (Smt. Kanchan vs. Yogesh), u/s 12 of Domestic Violence Act, Police Station-New Agra, District-Agra. Heard learned counsel for the applicant and learned A.G.A. and also perused the record. Submission of counsel for the applicant is that the lower appellate court has passed a very anomalous order dated 29.5.2017 whereby even though it has set aside the order dated 3.12.2015 passed by the court below but the same has been done on the condition that the the applicant shall pay not only Rs.3,000/- per month to the wife but he shall also be liable to pay up the arrear amount accruing since 3.12.2015. Further submission is that such a direction is so apparently going to gravely prejudice the prospect of the proceedings of the Domestic Violence Act and in fact there would be hardly any chance to the same proceedings to be concluded fairly in the light of the observations and the relief that has already been granted to the wife. The order passed by the court below on 03.12.2015 was without granting adequate opportunity to the applicant of being heard. Matter requires consideration on facts and law both. Notice on behalf of opposite party No.1 has been accepted by learned A.G.A. Issue notice to the opposite party no.2 returnable within four weeks. Opposite party no.2 may file counter affidavit within three weeks after the service. Learned AGA may also file counter affidavit within the same period. Rejoinder affidavit may be filed within two weeks thereafter. List this matter immediately after expiry of the aforesaid period before the appropriate bench. The operation of impugned order dated 29.5.2017 passed by learned Additional Session Judge, Court No.17, Agra in Criminal Appeal No.48/2017 (Yogesh Soni and others vs. State of U.P.) shall remain in abeyance provided and with the condition that the applicant shall keep on paying Rs.3000/- per month to the wife as a matter of interim maintenance for her sustenance, till further orders by this Court. It is clarified that if the applicant fails to comply with the aforesaid condition, the interim order of stay passed by this Court shall be deemed to have been vacated automatically. It is further clarified that this order will remain subject to the final order that may be passed by this Court after hearing the matter on merits."

4. Learned counsel for the applicant has submitted that proceedings under Sub-Rule 5 of Rule 6 of the Protection of Women from Domestic Violence Act, 2006 was also initiated by O.P. No.2 and thereafter, it appears that recovery warrants have been issued. Learned counsel for the applicant has submitted that the applicant herein preferred an application on 22.09.2023 before the court of FTC-Ist, Agra in the said proceedings coming up with a stand that the husband of the O.P. No.2 and the son of applicant herein is living all alone and the applicant is an aged person and he has nothing to do with the recovery proceedings, as he has disowned his son. On the said application, an order came to be passed on 20.11.2023, which is at Page-46 of the paper-book. Thereafter another application came to be preferred by the applicant on 19.09.2024, in which on 20.09.2024, the following order was passed: - "पतቔኋवलली कके अवललोकन सके ऐस ्ቚतलीत हलोतቔኋ हहै कक ्ቚቔኋरቕኍ दቔኋरቔኋ अपनके पपुत कलो कछिपቔኋयቔኋ जቔኋ रहቔኋ हहै। ्ቚቔኋरቕኍ दቔኋरቔኋ पपुत कके हቔኋल कनवቔኋस कके ससंबसंध मम स्वयसं कलोई जቔኋनकቔኋरली नहीሻ दली जቔኋ रहली हहै। उपरलो्ሹ आधቔኋर पर ्ቚቔኋ०पत खቔኋररज ककयቔኋ जቔኋतቔኋ हहै। "

5. Learned counsel for the applicant while questioning the order dated 20.09.2024 has submitted, that once the applicant has disowned his son, then no liability whatsoever can be fastened and is being harassed in all possible manner, as recovery warrant is being executed against him.

6. Learned A.G.A. on the other hand submits that once there happens to be an order dated 20.11.2023 and 20.09.2024 that recovery warrant is not being executed against the applicant, however, since the address shown in the complaint was the place where the applicant is residing and the whereabouts of the husband of O.P. No.2 and the son of the applicant is not traceable, thus police is visiting in order to execute the warrants, no cause of action whatsoever has been arisen.

7. Having heard the submissions so made across the Bar as well as the fact that there is no warrant issued against the applicant, as per the records, and there happens to be two orders dated 20.11.2023 and 20.09.2024, which itself shows that recovery warrants are not being executed against the applicant, thus no cause of action has arisen.

8. The application accordingly dismissed at this stage. In case, the order is passed or recovery is being executed against the applicant, he may approach again. Order Date :- 9.5.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad