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Judgment
B.N. Karia, J
By way of present petition, petitioner has prayed for following reliefs:
“(A) The Hon’ble Court may be pleased to admit and allow this application.
(B) The Hon’ble Court may also be graciously pleased to call for Record and Proceedings of Criminal Misc. Application No.13/20 followed by CR.M.A. 322/20 arisen out of Criminal Misc. Application No.135/2014 from the learned JMFC Court, Mehmadabad, Dist. Kheda-Nadiad and examine the same for the purposes of satisfying itself as to the correctness, legality and propriety and quash and set aside the impugned judgment orders passed therein on the principle of equity, justice and good conscience and in the interest of justice;”
Heard learned advocate appearing for the petitioner, learned advocate appearing for the respondent No.2 and learned APP appearing for the respondent-State.
It is submitted by learned advocate appearing for the petitioner that in Recovery Application i.e. Criminal Misc. Application No.322 of 2020 preferred by the respondent No.2, arrest warrant was issued by the court below, which is erroneous and illegal. That during the pendency of the proceedings before the trial court, divorce decree was passed by the competent Court in favour of the present petitioner, which is challenged by the respondent-wife. That present petitioner has no means to pay the amount of the maintenancne granted to the respondent No.2, and therefore, the orders passed by the trial court issuing arrest warrant against the present petitioner is erroneous and illegal, and therefore, it is requested by learned advocate appearing for the petitioner to allow this petition and quash and set aside aside the orders passed by trial court in Criminal Misc. Application No.322 of 2020 in Criminal Misc. Application No.135 of 2014.
From the other side, learned advocate appearing for the respondent No.2 submitted that the amount of maintenance awarded by the court below at the rate of Rs.1,500/- per month was not regularly paid by the present petitioner as ordered on 18.04.2016. That respondent was compelled to file recovery application under Section 125(3) of the Code of Criminal Procedure, 1973, wherein trial court was pleased to issue notice making it returnable on 31.01.2021 by order dated 22.12.2020. It is further submitted that husband was duty bound to pay the amount of maintenance amount as ordered in Criminal Misc. Application No.135 of 2014. That no illegality or error is committed by the trial court in issuing notice to the present petitioner. That no order of arrest warrant is produced on record by the present petitioner. Hence, it is requested by learned advocate appearing for the respondent No.2 to dismiss the present petition.
Learned APP appearing for the respondent-State has requested to pass necessary order as it is dispute between the husband and wife.
Having heard learned advocates appearing for the respective parties and learned APP appearing for the respondent-State, it appears that proceeding i.e. Criminal Misc. Application No.135 of 2014 under Section 125 of Cr.P.C. was filed by the respondent-wife against the present petitioner before the court of learned Judicial Magistrate First Class, Mehmadabad and the said application was partly allowed by the court below granting maintenance of Rs.1,500/- per month vide order dated 18.04.2016. As the petitioner/ husband failed to pay the amount of maintenance regularly in favour of the respondent-wife, two different applications i.e. Criminal Misc. Application No.13 of 2020 as well as Criminal Misc. Application No.322 of 2020 were preferred by her before the learned Additional Judicial Magistrate First Class, Mehmadabad and copies thereof are produced on record by the petitioner. It also appears that in both the matters i.e. Criminal Misc. Application No.13 of 2020 as well as Criminal Misc. Application No.322 of 2020 filed under Section 125(3) of Cr.P.C, notice was issued vide order dated 06.01.2020 and 22.12.2020 respectively. There is nothing on record that any arrest warrant was issued in Criminal Misc. Application No.322 of 2020 in Criminal Misc. Application No.135 of 2014 as argued by learned advocate appearing for the petitioner. No copy of the order is produced on record by the petitioner. Only notice under Section 125 (3) of Cr.P.C. was issued by the court below as discussed above.
It also appears that on 13.01.2019, learned Family Court, Nadiad has passed the order in favour of the present petitioner in Family Suit No.178 of 2018 granting decree of divorce. As per the submissions made by learned advocate appearing for the respondent No.2, decree granted by learned Family Court, Nadiad for divorce is challenged by the respondent No.2. Present petitioner, being husband, is bound to pay the amount of maintenance as per order dated 18.04.2016 by the learned trial court. As the petitioner has failed to pay the amount of maintenance as per the order, she has preferred two different applications under Section 125(3) of Cr.P.C., wherein only notice was issued by the court below. Issuing notice to the present petitioner by the court below as per record, can never be said that any illegal order is passed by the court.
From the facts of the present case, it appears that this Court, on 14. 10.2021, was pleased to direct the learned Additional Judicial Magistrate First Class, Mehmadabad to proceed further with the case in accordance with law as no stay was granted by this Court. As there is no substance in the petition preferred by the present petitioner, present petition requires dismissal. Hence, Dismissed. Notice stands discharged.
Petitioner shall pay Rs.5,000/- to the respondent-wife for harassing her by filing of such a frivolous application before this Court within a period of two weeks from the date of passing of this order.