Court No. - 84

Case :- APPLICATION U/S 482 No. - 4483 of 2022

Applicant :- Vipin Kumar

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Omvir Singh Rajpoot

Counsel for Opposite Party :- G.A.

Hon'ble Ajit Singh,J.

Heard learned counsel for the applicant and learned A.G.A. for the State.

The applicant by means of this application under Section 482 Cr.P.C. has

invoked the inherent jurisdiction of this Court with a prayer to quash the

order dated 30.11.2021 passed by the Principal Judge, Family Court,

Kasganj in Case No. 118 of 2020 (Smt. Kaushalya @ Kaushal vs. Vipin

Kumar), under Section 128 Cr.P.C., P.S. Kasganj, district-Kasganj. A

further prayer is that a direction be issued to the court below to release the

applicant from jail forthwith.

It is submitted by learned counsel for the applicant that marriage between

applicant and opposite party no. 2 was solemnized on 8th December, 2010.

Out of the aforesaid wedlock, a baby girl was born. However, after some

time, the relationship between the husband and wife became strained and

incompatible. Thereafter the opposite party no. 2 has initiated several

litigations against the applicant. In connection with the same, she along

with her daughter filed an application under Section 125 Cr.P.C. before the

Family Court, Kasganj, which was allowed by the Principal Judge, Family

Court, Kasganj vide judgment and order dated 30.11.2021. It is also

submitted that the applicant is a handicapped person, certificate whereof

has been filed as Annexure-2 to the affidavit accompanying the

application. Due to the reason he failed to comply with the order passed

under Section 125(3) Cr.P.C. and the learned court below has issued the

recovery warrant dated 8.10.2021, directing that the applicant shall pay a

sum of Rs. 1,65,000/- (Rs. one lac sixty five thousand) to the opposite

party no. 2 as maintenance w.e.f. 30.7.2017 to 19.1.2020 and in pursuance

of recovery warrant the applicant was sent to jail. On 30.11.2021 the

applicant was summoned by the court below and he was produced by the

jail authority before the court blow and the court below had passed the

order, while detaining the applicant in jail for a period of one month and

directed that during detention, the applicant shall pay a sum of Rs. 5,000/-

per month to opposite party no. 2, fixing next date, i.e. 2012.2021,

directing the Jail Superintendent to produce the applicant again on the next

date fixed.

It is also submitted by learned counsel for the applicant that provisions of

Section 125(3) Cr.P.C. specifically provides for issuance of a warrant for

lavying the amount issued in the manner provided for lavying of fines.

The learned court below has passed the order dated 30.11.2021 for

detention of applicant in jail for one month without complying the

provision contained in Section 125(3) Cr.P.C. and without imposing any

fine, hence the impugned order dated 30.11.2021 is liable to be quashed.

In support of his submissions, learned counsel for the applicant has placed

reliance upon the following judgments of Gauhati High Court, Calcutta

High Court and Punjab & Haryana High Court:

1. Hazi Abdul Khaleque vs. Mustt. Samsun Nehar, 1991 CriLJ, 1843;

2. Dipankar Banerjee vs. Tanuja Banerjee reported in 1998 CriLJ 907; and

3. Om Prakash @ Parkash vs. Vidya Devi reported in 1992 CrlLJ 658.

Per contra, learned A.G.A. for the State has opposed the submissions made

by the learned counsel for the applicant by contending that that the

applicant is a defaulter and has not paid any amount as awarded by the

Family Court under order dated 30.7.2017 to opposite party no. as interim

allowance. Therefore, the Family Court has rightly issued recovery

warrant against the applicant for realization of the amount so due and there

is no error in the order impugned.

I have considered the submissions made by the learned counsel for the

parties and have gone through the record.

Before comin