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2022 Supreme(All) 186
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
MANJU RANI CHAUHAN, J.
Arvind Upadhayay – Appellant
Versus
State of U.P. and Another – Respondents
Application U/S 482 No.37040 of 2016
Decided on : 23-03-2022
Advocate Appeared:
For the Appellant : Rahul Mishra
For the Respondent: Anil Kumar Chaudhary, Ved Prakash Shukla
Point of Law: Director General of Police, State of U.P. at Lucknow to ensure that the summons are served upon the person concerned, which have been issued, in execution of the maintenance allowance granted by the courts in favour of a married women.
Headnote:
Protection of Women from Domestic Violence Act, 2005 - Sections 31 – Criminal Procedure Code, 1973 – Section 482 - Safeguard the right to maintenance of wives- Harassment faced by the women even after passage of nearly five years from the date of orders -Appeal - No relief/protection of right to residence was given- Execution of the order - Penalty for breach of protection order by respondent – Applicant is missing and he has not been traced out, therefore, prays that matter may be posted for some other date and till then, interim protection granted earlier to applicant be also extended -(Para 20).
Finding of the Court: Several cases, wherein maintenance has been awarded by the orders of the court, are pending and even notices have not been served upon the parties due to which women are suffering, as in the present case, which is the best example of harassment faced by the women even after passage of nearly five years from the date of orders in her favour-seeing this pitiable predicament of a woman, who has been grappling from pillar to post and getting hoodwinked by multifarious impediments, which are purportedly for the objective of harboring applicant from the shrewdness of this Court, excogitated by the family of the husband, is an archetype illustration of loopholes in way of our criminal justice system. To counteract and proscribe kindred occurrences in future and to safeguard the right to maintenance of wives, this Court directs the Director General of Police, State of U.P. at Lucknow to ensure that the summons are served upon the person concerned, which have been issued, in execution of the maintenance allowance granted by the courts in favour of a married women.
Result: Application dismissed.
JUDGMENT :
1. On 4th February, 2021, this Court passed following order:
"On 5th December, 2016, a Coordinate Bench of this Court passed following order:
"The present application u/s 482 Cr.P.C. has been filed with the prayer to quash the entire proceedings of case no. 8008 of 2016, under Sections 31 Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act), Police Station Civil Lines, District Allahabad pending in the court of Addl. Chief Judicial Magistrate, Court No. 10, Allahabad. Further prayer has been made to stay further proceedings of the aforesaid case.
Heard learned counsel for the applicant as well as the learned AGA.
It is submitted by the learned counsel for the applicant that during the pendency of the appeal filed against the order under Section 12 of the Act an application under Section 31 of the Act was moved by the aggrieved party. Concerned Magistrate exceeding the jurisdiction passed the orders dated 4.11.2016 and 8.11.2016. In the original order passed under Section 12 of the Act no relief/protection of right to residence was given. Since Section 31 of the Act is related to the execution of the order passed under Section 12 of the Act, no further order could be passed under Section 31 of the Act. It was further argued that Section 31 of the Act only deals with the penalty for breach of protection order by respondent. It was further argued that the impugned order passed by the court concerned in the proceedings under Section 31 of the Act are not appealable. Matter requires consideration.
Learned AGA has accepted notice on behalf of the opposite party no.1.
Issue notice to opposite party no. 2.
Steps be taken by Registered Post A.D. within a week.
All the opposite parties may file counter affidavit within four weeks. Rejoinder affidavit may be filed within two weeks thereafter.
List this matter on 30.1.2017 before the appropriate Bench.
Till the next date of listing, effect and operation of the orders dated 4.11.2016 and 8.11.2016 shall remain stayed."
On 26th August, 2019, the same Coordinate Bench of this Court passed following order:
"Present application u/s 482 Cr.P.C. has been filed with a prayer to set-aside the order dated 4.11.2016 passed by the Addl. Chief Judicial Magistrate, Court No.10, Allahabad in the proceedings under section 31 of the Protection of Women from Domestic Violence Act.
Perusal of the record reveals that no such relief was granted in the order dated 22.8.2016 passed in Case no.1362 of 2013 (Smt. Priyanka Vs. Arvind Kumar Upadhyay) in the proceedings under section 12 of the Protection of Women from Domestic Violence Act as allowed on 4.11.2016 in the proceeding under section 31 of the Protection of Women from Domestic Violence Act.
Keeping in view the above facts, I find it necessary to call for a report from the court concerned/Addl. Chief Judicial Magistrate, Court No.10, Allahabad whether the order dated 4.11.2016 could be passed in the petition under section 31 of the Protection of Women from Domestic Violence Act beyond the relief granted vide order dated 22.8.2016.
Thus, office is directed to send copy of this order to the court concerned within three days from today through Fax for submission of report.
List this matter on 18.9.2019.
In the meantime, rejoinder affidavit may be filed by the learned counsel for the applicant.
Interim order, if any, is extended till the next date of listing."
2. On 27th November, 2019, an another Coordinate Bench of this Court passed following order:
"Learned counsel for the applicant is present.
He has mentioned that in compliance of Court's order, dated 6.11.2019, Arvind Upadhayay is not in a position to attend this Court because he is missing and a missing report has been lodged at Police Station, concerned, wherein, a report of Police, dated 16.5.2018, in form of certified copy, has been filed to the court, concerned. The same has been produced before this Court, too, though it is not supported by any affidavit. As the same is c
