Sanjay Kumar Singh, J. - (1.) Heard Sri Siddhartha Srivastava, learned counsel for the applicant, Sri A.C.Tewari, Advocate, assisted by Sri Shekhar Dwivedi and Sri A.B.Sinha, learned counsels for opposite party no.2 and learned Additional Government Advocate and perused the record.
(2.) The applicant has filed this application under Section 482 Cr.P.C. assailing the order dated 22.12.2016 passed by Additional Chief Judicial Magistrate, Court No.8, Allahabad, in Case No.1733 of 2015 (Shambhavi Singh vs. Rahul Singh), whereby learned Additional Chief Judicial Magistrate has allowed the application dated 22.12.2016 of the opposite party no.2 directing the opposite party no.2 to live in her matrimonial House No.K-273 near Power House Crossing, Ashiyana, District Lucknow alongwith her minor daughter Katyani pursuant to order dated 19.11.2016 and further directed the applicant not to create any hindrance in peaceful living of the opposite party no.2 alongwith her daughter in his aforesaid house. On 01.05.2017, this Court passed the interim stay order issuing notice to the opposite party no.2, which is reproduced herein-below:- "Supplementary affidavit filed today by learned counsel for the applicant is taken on record. Challenging the legality and correctness of the order dated 22.12.2016 passed by learned A.C.J.M., Court No. 8, Allahabad in Case No. 1733 of 2015 (Shambhavi Singh Versus Rahul Singh) the applicant by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with prayer to quash the aforesaid order. Heard learned counsel for the applicant and learned A.G.A. Perused the record. Learned counsel for the applicant has contended that opposite party no. 2 had filed a maintenance case under Section 125 Cr.P.C. before the Principal Judge, Family Court, Allahabad on 21.9.2015 and another case under Protection of Women From Domestic Violence Act on 28.9.2015 before the court of A.C.J.M., Court No. 8, Allahabad. The case under Section 125 Cr.P.C. was decided on 6.9.2016 by the Principal Judge, Family Court, Allahabad whereby the applicant was directed to pay Rs. 10,000/- per month to his wife and Rs. 5000/- per month to his minor daughter Km. Katyayani Singh. Thus, the applicant was directed to pay Rs. 15,000/- in all per month as maintenance to his wife and minor daughter. Learned counsel has further submitted that the applicant was regularly paying the aforesaid amount of maintenance to his wife and daughter, in proof, copies of the bankdrafts and the bank statements have been filed today by means of a supplementary affidavit. It is further contended that the application under Section 23(2) of Protection of Women From Domestic Violence Act was decided by the learned A.C.J.M. vide order dated 19.11.2016 granting Rs. 15000/- to the wife and minor daughter of the applicant with condition that if the wife and daughter were getting maintenance in any other case, the same shall be adjusted/set off in the amount granted in this case. Learned counsel has submitted that as the amount of Rs.15000/- was the same in both the cases and the applicant was regularly paying the said amount in the case under Section 125 Cr.P.C. and moreover, the wife had never moved any execution application against the applicant in maintenance case under Section 125 Cr.P.C. the applicant ever even imagined that he has done any wrong against the opposite party no. 2 i.e. his wife. However, the opposite party no.2 (wife) concealing the aforesaid facts, from the court, moved an application before the court of A.C.J.M. in the case under Domestic Violence Act, seeking interim maintenance which was allowed ex-parte by granting Rs. 15000/- per month to the wife and daughter vide aforesaid order dated 19.11.2016. Thereafter the opposite party no. 2/wife moved another application under Section 31 of Protection of Women From Domestic Violence Act on 22.12.2016 alleging non compliance of the order dated 19.11.2016, again without disclosing the fact that she is already receiving Rs. 15,000/- per month in the case under Section 125 Cr.P.C. which is to be set off in the amount awarded in case under Domestic Violence Act. In this regard, learned counsel has drawn the attention of this Court to the copy of the application moved by the wife under Section 31 of Protection of Women From Domestic Violence Act to show that there is even no whisper in this application about the fact that she is receiving of Rs. 15000/- regularly as maintenance in the case under Section 125 Cr.P.C. Thereafter she moved another application for execution of the order dated 19.11.2016 once again concealing the fact that the interim maintenance amount was ordered to be set off against any amount, she was already receiving and made a new prayer that she may be permitted to reside in her matrimonial home. Learned counsel has contended that this application was allowed on the same day by the learned Magistrate without even giving any opportunity of hearing to the applicant, directing the applicant not to create any hindrance in the residing of the wife with her daughter in her matrimonial home. Learned counsel has contended that the applicant has never made any default in payment of maintenance amount to his wife, therefore, Section 31 of the Protection of Women From Domestic Violence Act is not applicable to his case. Moreover, there is no provision under Section 31 of Protection of Women From Domestic Violence Act to pass order regarding the right of residence in matrimonial home, therefore, the impugned order is liable to be set aside. Learned A.G.A. has opposed the application but he could not point out anything relevant to contradict the aforesaid submissions. The matter requires consideration. Notice on behalf of opposite party no.1 has been accepted by learned A.G.A. Issue notice to opposite party no. 2 returnable at an early date. Steps be taken within 10 days. Let counter affidavit be filed within four weeks. Rejoinder Affidavit, if any, may be filed within two weeks thereafter. Learned A.G.A. may also file counter affidavit within the said period. List after expiry of the aforesaid period before the regular Court. Meanwhile the effect and operation of the order dated 22.12.2016 passed in Case No. 1733 of 2015 (Shambhavi Singh Versus Rahul Singh) shall remain stayed subject to condition that the applicant shall continue to pay regularly the maintenance amount awarded under Section 125 Cr.P.C. to his wife and minor daughter. In case of default, the court below may proceed against him in accordance with law."
(3.) Since relevant facts of this case for just decision of the case has already been disclosed in the above mentioned order dated 01.05.2017, therefore, there is no necessity to repeat the same.;