Bharat Sen vs State of Uttar Pradesh and Another

S.K. Phaujdar, J.—This application has been filed to stay the proceeding of Case No. 528 of 1993, u/s 127, Criminal Procedure Code initiated by one Meera Devi against the present applicant. It is stated that initially Smt. Meera Devi filed an application u/s 125, Criminal Procedure Code in Criminal Case No. 272 of 1983 before the Chief Judicial Magistrate, Jaunpur which was allowed on 5.12.1985 after contest and the applicant was directed to pay Rs. 175/- to opposite party No. 2-Smt. Meera Devi and Rs. 75/- to her daughter as monthly allowance. This order was challenged in Criminal Revision No. 298 of 1985 before the Sessions Judge, Jaunpur and the revision application was dismissed. Thereafter the present applicant filed Criminal Misc. Application No. 4387 of 1987, u/s 482, Criminal Procedure Code and the same was admitted on 10.4.1987 only on the point of quantum of the maintenance allowance. The aforesaid application u/s 482, Criminal Procedure Code is still pending. During the pendency of that proceeding the wife again moved an application before the Court below for enhancement of the maintenance sum by a separate application which was registered as Criminal Case No. 528 of 1993. It is stated that during the pendency of the matter before the High Court u/s 482, Criminal Procedure Code on the point of amount of maintenance, there could not have been a second prayer for enhancement of the maintenance sum. The records of Criminal Misc. Application No. 4387 of 1987, u/s 482, Criminal Procedure Code are before me. It appears that the Hon''ble Judge admitting the application u/s 482, Criminal Procedure Code had ordered on 10.4.1987 that the applicant was to go on paying Rs. 200/- per month as an interim measure and subject to such payment the realisation of other dues would remain stayed. It is submitted on behalf of the applicant that he has been paying regularly in terms of the interim order.

The order of maintenance was passed in 1987 and even the High Court had not passed a blanket stay order, rather directed payment of Rs. 200/- per month for the mother and the daughter. The application for enhancement had been made in 1993 that is long six years after the final order of maintenance. It is true that the High Court is looking into the matter as to what amount should be fixed towards maintenance u/s 482, Criminal Procedure Code in Case No. 4387 of 1987 which has been admitted only on that point. But the decision of the High Court would reflect the situation that existed in 1987 and at the worst the High Court could dismiss the prayer and maintain the order recorded by the Court below but the passage of time may be a criterion for change in the amount of maintenance. The pendency of a Section 482, Criminal Procedure Code, application may not therefore, be a bar for the wife to file an application for enhancement of the maintenance amount.

The present application in Criminal Misc. Application No. 5841 of 1997 is accordingly dismissed. The Court below may proceed with the inquiry.

It is further directed that Criminal Misc. Application No. 4387 of 1987 may be put up for hearing on the hearing date of 18th November, 1997.