Mushtaq Ahmad vs State of U.P. and Another

S.I. Jafri, J.—I have heard Sri Haidar Husain learned Counsel for Smt. Rehana and also Sri V.M. Zaidi, learned Counsel for Mushtaq Ahmad at great length. I have also heard Sri A.K. Dwivedi, learned Counsel for the State.

This instant case speaks volumes about the devious methods adopted by Mushtaq Ahmad, husband of unfortunate and deserted wife and Smt. Rehana her three minor children depriving her and her children from getting maintenance from her husband awarded by the learned Magistrate.

Smt. Rehana filed an application u/s 125 Code of Criminal Procedure on her behalf and on behalf of her three minor children on 5-4-82 before the learned Magistrate, Muzaffarnagar praying maintenance allowance of Rs. 500/- per month from her husband, Mushtaq Ahmad appeared before the Court on receipt of the notice and he took six adjournments from the Court for filing written statement but he did not file the same and thereafter absented himself from the Court on the date of hearing. The learned Magistrate, therefore, passed an ex-parte order on 31st July 1982 awarding Rs. 500/- per month as maintenance allowance from her husband Mushtaq Ahmad. The said ex-parte order was set aside by the learned Magistrate on 21-9-1982 on the application of Mushtaq Ahmad and the same day Mushtaq Ahmad filed written statement in the case. The examination-in-chief of Smt. Rehana was recorded by the learned Magistrate on 15-3-83 but Mushtaq Ahmad instead of cross examining Smt. Rehana, moved an application for adjournment praying for cross-examining Smt. Rehana on some other date. The learned Magistrate allowed the request and adjourned the case for the next date. Mushtaq Ahmad, however, did not cross-examine Smt. Rehana though several dates were given to him by the learned Magistrate and ultimately the learned Magistrate on account of absence of Mushtaq Ahmad had to pass exparte order on 15-7-83 awarding Rs. 500/- per month as maintenance to Smt. Rehana and her three minor children. Mushtaq Ahmad again went in revision before the learned Sessions Judge against the aforesaid exparte order and the learned Sessions Judge by his order dated 19-12-83 set aside the aforesaid exparte order and remanded the case for disposal to the Court below. Further the learned Sessions Judge had imposed a condition on Mushtaq Ahmad to deposit a sum of Rs. 2500/- as interim maintenance for his wife and three minor children in the Court of the Magistrate as interim maintenance for one year to be adjusted towards final order of maintenance and held that the exparte order be treated as set aside and thereafter Smt. Rehana shall offer herself for cross-examination. However, Mushtaq Ahmad with the intention of non-complying with the aforesaid condition imposed by the learned Sessions Judge filed an application in the High Court u/s 482 challenging the legality of the order dated 19-12-83 passed by the learned Sessions Judge. The said application u/s 482 Code of Criminal Procedure was dismissed by Hon. Wahajuddin, J. on 10-12-84.

Mushtaq Ahmad did not deposit Rs. 2500/- and he also did not cross examine Smt. Rehana. The learned Magistrate ultimately placing reliance on the evidence on record passed again an exparte order on 23-3-85 awarding Rs. 500/- as maintenance. Mushtaq Ahmad again filed an application for setting aside the aforesaid exparte order dated 23-3-85 which was rejected on 11-6-85 by the learned Magistrate holding that it is apparent from the conduct of Mushtaq Ahmad that he does not want that the case be finally decided.

Mushtaq Ahmad again filed a revision before the learned Sessions Judge against the aforesaid order of the Magistrate dated 11-6-85 which was dismissed by Sri D.P. Varshney, II Addl. Sessions Judge, Muzaffarnagar on 20-1-86 with the result that the order dated 23-3-85 passed by the learned Magistrate granting maintenance of Rs. 500/- to Smt. Rehana and her three minor children had become final. Mushtaq Ahmad also did not challenge the aforesaid order dated 20-1-86 passed by Sri D.P. Varshney, II Addl. Sessions Judge, Muzaffarnagar affirming the order dated 23-3-85 passed by the learned Magistrate. Thereafter, proceedings for the recovery of Rs. 24000/- from Mushtaq Ahmad as maintenance were started by the learned Magistrate who issued attachment order and warrant of arrest against Mushtaq Ahmad on 13-2-1987 and 16-2-1987. Mushtaq Ahmad appeared before the Magistrate and filed objection for recalling the order dated 13-2-87 and 16-2-87 regarding issue of process for the recovery of arrears. The learned Magistrate recalled the order dated 13-2-87 and 16-2-87 but Mushtaq Ahmad again filed a revision in the Court of the learned Sessions Judge against the order dated 13-2-87 and 16-2-87 passed by Ranjan Pandey, Munsif Magistrate I, Muzaffarnagar.

Thereafter, Mushtaq Ahmad concealing the above mentioned facts that the order dated 13-2-87 and 16-2-87 has been recalled by the Magistrate and also concealing that he had filed Cr. Revision 53 of 1987 Mushtaq Ahmad v. Smt. Rehana against the aforesaid order before the Sessions Judge, he filed a petition u/s 482 Code of Criminal Procedure against the order dated 13-2-87 before this Hon''ble Court and got the following order passed by this Court on the plea that the aforesaid order was passed without affording opportunity to him by the Magistrate to contest the case. The said order is quoted below:

"Heard the learned Counsel for the applicant. The exparte order dated 23-3-87 passed by the Magistrate u/s 125 Code of Criminal Procedure is illegal and it is therefore, set aside. The Magistrate is directed to afford opportunity to the applicant before passing the order of maintenance u/s 125 Code of Criminal Procedure. Recovery proceeding in case No. 203/11 of 1986 pending in the Court of Munsif Magistrate I, Muzaffarnagar, is also set aside. Any warrant issued against the applicant is also set aside.

With the above direction this application is disposed of.

Sd. S.I. Jafri. 2-4-87. "

After passing of the aforesaid order dated 2-4-87 by this Court, Mushtaq Ahmad filed an application before the II Addl. Sessions Judge, Muzaffarnagar praying that Cr. Revision No. 53 of 1987 be dismissed as it had become infructuous as Hon''ble court by his order dated 2-4-87 had set aside the order dated 13-2-87 passed by the learned Magistrate and consequently the aforesaid Cr. Revision No. 53 of 1987 preferred by Mushtaq Ahmad against Smt. Rehana was dismissed by the learned Sessions Judge.

Aggrieved by the aforesaid order dated 2-4-87 passed by this Court, Smt. Rehana filed an application giving full facts of the case as stated above praying that the aforesaid order dated 2-4-87 may be recalled.

From the facts and circumstances as given above, my judicial conscience has been shaken. The unfortunate lady Smt. Rehana and her three minor children Km. Shabnam Parvin, Aftab Alam and Shabnawaz Alam have been starving as destitute since 1982 on account of the devious and cunning tactics adopted by Mushtaq Ahmad so much so that she could not get even a single penny till today though on three occasions she had succeeded in getting the award of maintenance of Rs. 500/- per month in her favour by the Court below.

After giving my utmost consideration to the facts and circumstances of the case as discussed above, I recall my order dated 2-4-87 and direct the Munsif Magistrate Ist to proceed with the recovery of the entire arrears of maintenance allowance from Mushtaq Ahmad forthwith by resorting to coercive methods, if required, in accordance with law.

In the result, the application filed by Smt. Rehana is allowed and the order dated 2-4-87 passed in Cr. Misc 4137 of 1987 u/s 482 Code of Criminal Procedure Mushtaq Ahmad v. State of U.P. by this Court is recalled.

Office is directed to send a copy of the order within three days from today to the Judicial Magistrate Ist Muzaffarnagar for immediate compliance.

List this case for orders within three weeks on 20th of May 1988 after the compliance report from the Judicial Magistrate, I, Muzaffarnagar is received.