CRLR/32/2022 of VIMAL KUMAR VERMA Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Revision No. 32 of 2022

Vimal Kumar Verma

….......Revisionist

State of Uttarakhand and another …..... Respondents

Present : Mr. B.M. Pingal, Advocate for the revisionist. Mr. Lalit Miglani, A.G.A. for the State/respondent no.1. Girish Chandra Lakhchaura, Advocate for respondent no.2.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to the order dated 03.12.2021, passed in Complaint Misc. Case No.259 of 2018, Smt. Garishma Belwal vs. Shri Vimal Kumar Verma, passed by the court of Judge, Family Court, Haldwani, District Nainital (for short, “the case”).

2. By the impugned order, an application filed under Section 125 of the Code of Criminal Procedure, 1973 (for short, “the Code”) seeking maintenance by the respondent no.2 has been allowed and the revisionist has been directed to pay `12,000/- per month maintenance the respondent no.2.

3. Heard learned counsel for the parties and perused the file.

4. Learned counsel for the revisionist has raised only one point. According to him, he was not afforded opportunity to rebut the claim in terms of resources of the revisionist.

5. It is argued that on 27.11.2021, the court directed the parties to file their affidavits in terms of the Hon’ble Apex Court’s judgement in the case of Rajnesh vs. Neha, (2021) 2 SCC 324 by 03.12.2021, but before the revisionist could have filed such affidavit, the judgment was delivered on 03.12.2021.

6. Learned counsel appearing for the respondent no.2 would submit that the respondent no.2 had, in fact, filed the affidavit on 27.11.2021 itself. The revisionist failed to file the affidavit pursuant to the order dated 27.11.2021, passed in the case. He would refer to para 4 and 8 of the impugned judgment. In para 4 of the judgment, the court below has observed that despite directions the revisionist did not file affidavit in terms of the judgment in the case of Rajnesh (supra). Similarly, this observation has again been made in para 8 of the

judgment when the court had observed that perhaps the revisionist is trying to conceal his income.

7. The question is, as to whether, the revisionist was not given opportunity to file the affidavit in terms of the judgement in the case of Rajnesh (supra)? On 27.11.2021, the court after hearing the arguments observed as hereunder:-

“Put up for orders on 03.12.2021 parties are directed to file affidavit in terms of Hon’ble Apex Court. Ruling Rajnesh vs. Neha by date fixed.”

8. The order does not say that the affidavit was to be filed day prior to 03.12.2021. The order says that the affidavits could have been filed up to 03.12.2021. Definitely, the order reflects that the revisionist could have filed the affidavit on 03.12.2021, but before such affidavit could have been filed, judgment has been rendered. Therefore, It cannot be said that the revisionist did not file affidavit pursuant to the direction of the court below dated 27.11.2021. In fact, the court closed the opportunity without any intimation to the revisionist. Therefore, impliedly the revisionist was denied the opportunity to file the affidavit. Observation has been made in the impugned judgment that the revisionist

despite order did not file affidavit. This observation is incorrect. Therefore, interference is warranted and the revision deserves to be allowed.

9. The revision is allowed.

10. The impugned judgment and order is set aside.

The parties shall appear before the court below on 27.09.2022. On that date itself, the revisionist shall file his affidavit in view of the judgment of Hon’ble Supreme Court in the case of Rajnesh (supra). On that date or any subsequent date, if the court permits, parties may advance their arguments and thereafter, another date may be fixed for judgment of the case.

Sanjay

(Ravindra Maithani, J.)

06.09.2022