# Arvind Upadhyay v. State of U.P. & Anr

- **Citation:** (2022) 4 ILRA 332
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-23
- **Case number:** Application U/S 482 No. 37040 of 2016
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-upadhyay-v-state-of-u-p-anr-48325
- **Pages:** 14

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Protection
of Women from Domestic Violence Act,
2005-Section 31 - quashing of entire
proceeding-maintenance-
Harassment
faced by wives even after several years
from the date of orders-appeal- no relief
regarding right to residence was givenexecution- applicant does not comply the
order for five years- Instead, an FIR was
lodged about the applicant's missing -
applicant escaping from his wife and
daughter deliberately-the matter could
not be resolved even giving opportunity
to the parties before the court -Several
cases, are pending and even notices have
not been served upon the parties due to
which women are suffering-to safeguard
the
right
of
maintenance
of
wives,
direction given to thee Director General of
Police to ensure the summons are served
upon the person concerned.(Para 1 to 21)

The application is dismissed. (E-6)

## Text

_Characters 0–39,936 of 47,440. This is a partial read: ask again with offset=39936 for what follows._

332 INDIAN LAW REPORTS ALLAHABAD SERIES

7. It is noteworthy that for the purpose
of section 72(7) of U.P. Excise Act vide
Notification No.4986 (E)/XIII-517 dated
June 4th, 1978 of आबकाऱी अनुिाग ,
appellate judicial authority appointed by
the State Government is "District Judge"
and an appeal should be regarded as Civil
Appeal (not Criminal) and is required to be
decided by the District Judge himself.

8. In view of the above, there is no
dispute that as per provisions of Section
72(7) of U.P. Excise Act, 1910, against the
order of confiscation passed by the District
Magistrate, Civil Appeal would lie before
the District Judge of the respective District.

9. Having heard learned counsel for
the parties, I find that learned counsel for
the applicant does not dispute the aforesaid
fact that vehicle in question has already
been confiscated by the District Magistrate
and the applicant has not challenged the
order of confiscation before the Appellate
Court.

10.

Accordingly,
the
instant
application is not liable to be entertained on
account of having alternative statutory
remedy available to the applicant as
mentioned above.

11. The application lacks merit and is
accordingly dismissed.

12. However, it is open for the
applicant to file civil appeal as per the
provisions of U.P. Excise Act, 1910 before
the competent Civil Courts, the District
Judge,
Mainpuri
subject
to
law
of
limitation.
----------
(2022)04ILR A332
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 37040 of 2016

Arvind Upadhyay ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rahul Mishra

Counsel for the Opposite Parties:
A.G.A., Sri Anil Kumar Chaudhary, Sri Ved
Prakash Shukla

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Protection
of Women from Domestic Violence Act,
2005-Section 31 - quashing of entire
proceeding-maintenance-
Harassment
faced by wives even after several years
from the date of orders-appeal- no relief
regarding right to residence was givenexecution- applicant does not comply the
order for five years- Instead, an FIR was
lodged about the applicant's missing -
applicant escaping from his wife and
daughter deliberately-the matter could
not be resolved even giving opportunity
to the parties before the court -Several
cases, are pending and even notices have
not been served upon the parties due to
which women are suffering-to safeguard
the
right
of
maintenance
of
wives,
direction given to thee Director General of
Police to ensure the summons are served
upon the person concerned.(Para 1 to 21)

The application is dismissed. (E-6)

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. On 4th February, 2021, this Court
passed following order:
4 All. Arvind Upadhyay Vs. State of U.P. & Anr.
333

"On 5th December, 2016, a
Coordinate Bench of this Court passed
following order:

"The present application u/s 482
Cr.P.C. has been filed with the prayer to
quash the entire proceedings of case no.
8008 of 2016, under Sections 31 Protection
of Women from Domestic Violence Act,
2005 (hereinafter referred to as the Act),
Police
Station
Civil
Lines,
District
Allahabad pending in the court of Addl.
Chief Judicial Magistrate, Court No. 10,
Allahabad. Further prayer has been made
to stay further proceedings of the aforesaid
case.

Heard learned counsel for the
applicant as well as the learned AGA.

It is submitted by the learned
counsel for the applicant that during the
pendency of the appeal filed against the
order under Section 12 of the Act an
application under Section 31 of the Act
was moved by the aggrieved party.
Concerned Magistrate exceeding the
jurisdiction passed the orders dated
4.11.2016 and 8.11.2016. In the original
order passed passed under Section 12 of
the Act no relief/protection of right to
residence was given. Since Section 31 of
the Act is related to the execution of the
order passed under Section 12 of the Act,
no further order could be passed under
Section 31 of the Act. It was further
argued that Section 31 of the Act only
deals with the penalty for breach of
protection order by respondent. It was
further argued that the impugned order
passed by the court concerned in the
proceedings under Section 31 of the Act
are not appealable.

Matter requires consideration.

Learned AGA has accepted notice
on behalf of the opposite party no.1.

Issue notice to opposite party no.
2.

Steps be taken by Registered Post
A.D. within a week.

All the opposite parties may file
counter
affidavit
within
four
weeks.
Rejoinder affidavit may be filed within two
weeks thereafter.

List this matter on 30.1.2017
before the appropriate Bench.

Till the next date of listing, effect
and
operation
of
the
orders
dated
4.11.2016 and 8.11.2016 shall remain
stayed."

On 26th August, 2019, the same
Coordinate Bench of this Court passed
following order:

"Present application u/s 482
Cr.P.C. has been filed with a prayer to setaside the order dated 4.11.2016 passed by
the Addl. Chief Judicial Magistrate, Court
No.10, Allahabad in the proceedings under
section 31 of the Protection of Women from
Domestic Violence Act.

Perusal of the record reveals that
no such relief was granted in the order
dated 22.8.2016 passed in case no.1362 of
2013 (Smt. Priyanka Vs. Arvind Kumar
Upadhyay) in the proceedings under
section 12 of the Protection of Women from
Domestic Violence Act as allowed on
4.11.2016 in the proceeding under section
31 of the Protection of Women from
Domestic Violence Act.

Keeping in view the above facts, I
find it necessary to call for a report from
the court concerned / Addl. Chief Judicial
Magistrate,
Court
No.10,
Allahabad
whether the order dated 4.11.2016 could be
passed in the petition under section 31 of
the Protection of Women from Domestic
Violence Act beyond the relief granted vide
order
dated
22.8.2016.
Thus, office is directed to send copy of this
order to the court concerned within three
days
from
today
through
Fax
for
submission of report.
334 INDIAN LAW REPORTS ALLAHABAD SERIES

List this matter on 18.9.2019.

In
the
meantime,
rejoinder
affidavit may be filed by the learned
counsel for the applicant.

Interim order, if any, is extended
till the next date of listing."

On 27th November, 2019, an
another Coordinate Bench of this Court
passed following order:

"Learned
counsel
for
the
applicant is present.

He
has
mentioned
that
in
compliance
of
Court's
order,
dated
6.11.2019, Arvind Upadhayay is not in a
position to attend this Court because he is
missing and a missing report has been
lodged at Police Station, concerned,
wherein,
a
report
of
Police,
dated
16.5.2018, in form of certified copy, has
been filed to the court, concerned. The
same has been produced before this Court,
too, though it is not supported by any
affidavit. As the same is certified copy of
Civil court, hence, perusal of it, reveals
above situation. But, this report is of
16.5.2018, whereas, the order is of
6.11.2019. What was the situation, in
between, has not been brought on record.

This Court has directed Arvind
Upadhayay for being present before this
Court, but, he failed to appear in person
before this Court. Hence, let Bailable
Warrant
be
issued
against
Arvind
Upadhayay, through, the Chief Judicial
Magistrate,
Varanasi,
for
ensuring
presence of Arvind Upadhayay before this
Court on the next date fixed.

Smt.
Priyanaka
Upadhyay,
Opposite party no.2, who is present in
person, has vehemently argued that Arvind
Upadhayay is not missing, rather, for
avoiding implementation of order of this
Court, this step has been taken by him.
Order, passed by the Magistrate, under
Protection of Women from Domestic
Violence Act, is not being complied with,
whereas, stay order has been obtained and
the same is being misused.

In view of above contention, it
would be appropriate that let the matter be
placed on the next date, fixed, to consider
as to why stay order, if any, may not be
vacated.

Inspite of repeated direction of
this Court, calling for explanation from the
concerned Court of Additional Chief
Judicial
Magistrate,
Court
No.10,
Allahabad, compliance report, in the form
of explanation, has not been received as
yet.

District
&
Sessions
Judge,
Allahabad, is being directed for ensuring
submission of explanation, in the form of
compliance report, by above Court, at the
earliest,
otherwise,
presence
of
the
Presiding Officer, concerned, in person
may be directed to be procured, by this
court.

List this case, for hearing, on 8th
January, 2020."

On 8th January, 2020, the said
Coordinate Bench of this Court passed
following order:

"Learned counsel for both sides
are present.

Report-cum-explanation
by
Judicial Magistrate, Allahabad, has been
filed and taken on record.

Perusal of report reveals that
previous report was also submitted but it
was not there on record, copy of same has
been filed. Impugned order has been passed
by the then Additional Chief Judicial
Magistrate-X, Neeraj Kumar Garg and
present Magistrate, who has filed reply,
was of no concern. Even, she was not in
service on above date. Hence, District and
Sessions Judge, Allahabad, was directed to
ensure
submission
of
explanation
of
Magistrate, who had passed order under
4 All. Arvind Upadhyay Vs. State of U.P. & Anr.
335
Section 31 of Protection of Women from
Domestic Violence Act, 2005. But the
explanation by the Magistrate concerned
has yet not been filed. District and Sessions
Judge, Allahabad, is being directed to
ensure submission of explanation of the
then Magistrate, over query made by this
Court, regarding passing of order, over an
application moved under Section 31 of the
Act, beyond the order given under Section
12 of the Act.

Arvind Upadhyay was directed to
be present before this Court and it has been
mentioned by his counsel that he is missing.
A missing report was got lodged. The other
side Priyanka Upadhyay, in person, had
vehemently opposed this fact and had
argued that he is at his parental residence
and avoiding process of law. If he is
missing, then how he is in contact with his
counsel, who is arguing in this case. This
seems to be a forceful argument. Hence,
learned counsel for the applicant to ensure
presence of Arvind Upadhyay before this
Court.

Let N.B.W. be issued against
Arvind
Upadhyay,
through,
C.J.M.,
Varanasi, for ensuring his presence before
this Court.

List
in
week
commencing
24.2.2020.

Interim
order,
if
any,
shall
continue till the next date. "

Today, on the matter being taken
up, learned counsel for the applicant is
present and he states that the applicant,
namely, Arvind Upadhyay is missing and he
has not been traced out. He, therefore,
prays that the matter may be posted for
some other date and till then, the interim
protection granted earlier to the applicant
be also extended.

On the other-hand, opposite party
no.2, namely, Smt. Priyanka Upadhyay,
who is present in person states that the
applicant is not missing and deliberately he
is disobeying the orders of the Court and
enjoying the benefits of the interim order
granted earlier to him in collusion with the
officials
and
officers
of
the
Police
Department. It is impossible to believe that
if the applicant is missing, then how he is in
contact with his counsel, who is arguing in
this case.

On perusal of the order of the
Coordinate Bench of this Court dated 27th
November, 2019 quoted herein above, this
Court finds substance in the submission
made by opposite party no.2 that the
applicant is not missing and he has been
avoiding the order of this Court and
process of law deliberately and due to the
same, the Coordinate Bench vide order
dated 27th November, 2019, has directed
the Chief Judicial Magistrate, Varanasi for
issuing bailable warrant against the
applicant so that he may be appeared
before this Court but he has not appeared.
On 8th January, 2020, the said Coordinate
Bench has not only directed the Chief
Judicial magistrate, Varanasi to issue nonbailable warrant against the applicant for
ensuring his presence before this Court but
also directed the learned counsel for the
applicant to ensure the presence of the
applicant
before
this
Court.
Despite
bailable warrant and non-bailable warrant
having been issued and more than one year
and two months from the date of the order
dated 27th November, 2019 and one year
and one month from the date of order dated
8th January, 2020 having been elapsed, the
applicant has not appeared before this
Court. Learned counsel for the applicant
has also not ensured the presence of the
applicant before this Court.

In view of the aforesaid, this
Court has no other option but to discharge
the interim order dated 5th December, 2016
granted to the applicant and to direct the
336 INDIAN LAW REPORTS ALLAHABAD SERIES
Senior Superintendent of Police, Varanasi
for ensuring the presence of the applicant
before this Court on the next date.

The interim order dated 5th
December,
2016
is,
accordingly,
discharged. The Senior Superintendent of
Police, Varanasi shall ensure that the
applicant, namely, Arvind Upadhyaya,
son of Shri Lakshmi Prasad Upadhyaya,
resident of 7/5A, Benipur Pahadia, Police
Station-Sarnath,
District-Varanasi
is
brought before this Court on the next
date.

The status report about the
issuance of bailable warrant and nonbailable warrant by the Chief Judicial
Magistrate, Varanasi is not on record. The
Chief Judicial Magistrate, Varanasi is
directed to file the same before this Court
on the next date.

The explanation of the then
Additional Chief Judicial Magistrate, Court
No. 10, Allahabad,namely, Neeraj Kumar
Garg (now Additional District and Sessions
Judge, Khurja, Bulandshahr), dated 27th
January, 2020, who has passed the order
dated 4th November, 2016 under Section 31
of the Protection of Women from Domestic
Violence Act and the order dated 22nd
August, 2016 has been sent to this Court
through the District Judge, Allahabad and
the same is on record, which is marked as
Flag-D of the order-sheet.

Before expressing any opinion on
the
explanation
given
by
the
then
Additional Chief Judicial Magistrate, the
reply of the learned counsel for the
applicant is required.

Office is directed to provide a
copy of the explanation dated 27th January,
2020 to the learned counsel for the
applicant within three days. On receipt of
the same, the learned counsel for the
applicant shall file reply to the same by
means of a supplementary affidavit.

Opposite party no.2 shall also file
counter affidavit on or before the next date.

Put up this case on 22nd
February, 2020 in the additional cause list.

The Registrar General is directed
to sent a copy of this order to the Senior
Superintendent of Police, Varanasi and the
Chief Judicial Magistrate, Varanasi for
necessary compliance at their end within
48 hours."

2. When the applicant was not being
traced out, this Court on 8th September,
2021 passed following order:

"On the matter being taken up,
Mr. J.K. Upadhyay, learned A.G.A. assisted
by Mr. Gaurav Pratap Singh, brief holder
for
the
State
and
Mrs.
Priyanka
Upadhyaya, opposite party no.2 (in person)
are present. Mr. Rajiv Upadhyay, Advocate
holding brief of Mr. Rahul Mishra,
Advocate who has filed an intervention
application on behalf of one Laxmi Prasad
Upadhyay, who happens to be the father of
the applicant is also present. However,
neither Mrs. Alka Singh and nor Mr. Vipin
Kumar Singh, Advocates who have filed the
present application on behalf of the
applicant and also appeared before the
Court earlier, are not present in the Court
today, even in the revised reading of the
list.

At this stage, this case has turned
into a strange case, in which, being wife i.e.
opposite party no.2 filed a case against her
husband i.e. the applicant herein under the
provisions of Protection of Women from
Domestic Violence Act, 2005 before the court
below and the court below passed order
dated 4th November, 2016 directing the
husband to provide a separate living room to
wife and daughter as also to give Rs. 1000/-
for their maintenance. On the application
filed by wife i.e. opposite party no.2, the court
4 All. Arvind Upadhyay Vs. State of U.P. & Anr.
337
below passed another order dated 8th
November, 2016 that if the husband i.e.
applicant does not comply the order dated
4th November, 2016, the Station House
Officer, Sarnath shall ensure the compliance
of the said order. Against both the orders, the
present application has been filed by the
husband i.e. applicant, who obtained an
interim order dated 5th December, 2016 ex
parte, whereby the orders dated 4th and 8th
November, 2016 were stayed till the next date
of listing. Thereafter the wife i.e. opposite
party no.2 appeared in the present case to
defend her case in the present application.
When the Court asked the learned counsel for
the applicant to ensure production of the
applicant before the Court, it has been
informed by the learned counsel for the
applicant that he is missing since 9th April,
2017 and a first information report about his
missing has also been lodged on 16th May,
2018 at Police Station-Sarnath, DistrictVaranasi. Learned counsel for the applicant
has further informed the Court that now he
has no instruction on behalf of the applicant,
as he is not in his contact. Thereafter Court
passed various orders directing the learned
counsel for the applicant as well as District
Police Varanasi to ensure the production of
the applicant before the Court but the
applicant has not been produced before this
Court either by the learned counsel for the
applicant or by the District Police, Varanasi.

In compliance of the order of the
Court dated 28th March, 2021, an affidavit
sworn
by
Mr.
Vikrant
Vir,
Deputy
Commissioner of Police, Varuna Zone,
Varanasi has been filed today in the Court
on behalf of the State, which is taken on
record. In paragraph nos. 4 to 6, it has
been stated as follows:

"4. That in compliance of the
order passed by this Hon'ble Court the
earlier Incharge of Police D.I.G./Senior
Superintendent of Police, Varanasi has
constituted a team for the search of
applicant namely Arvind Upadhyay vide
order dated 26.02-2021.

5. That the team constituted vide
order dated 26.2.201 has with great effort
tried to search the whereabouts of the
applicant on various dates and places,
which has been entered in G.D. record and
the same can be produced before this
Hon'ble Court as and when the Court
wishes to peruse, however, the entire gist
with regard to the efforts made by the
searching team is being placed before this
Hon'ble Court by way of progress report
dated 02.04.2021 through the answering
respondent. A Photostat copy of the
progress report dated 02.04.2021 is being
annexed
herewith
and
marked
as
ANNEXURE-2 to this affidavit.

6.That the police team constituted
earlier is still searching the applicant
namely Arvind Upadhyay with serious
efforts and the same will be produced as
and when recovered without wasting any
time in compliance of the orders of this
Hon'ble Court."

This Court is sorry to record that
the affidavit filed on behalf of the District
Police of Varanasi is too flimsy to be
accepted by this Court. The story made out
in the affidavit from the side of Police is
highly improbable, which is nothing else
but a scene of drama. A person, who is
missing since 9th April, 2017 and whose
missing report has been lodged on 16th
May, 2018, is not traceable inspite of all
the efforts of the police. The same appears
to be fishy as stated by the wife of the
applicant i.e. opposite party no.2 herein. In
today's modern era, where the policemen
have got all the facilities, yet the police is
not able to find out a person, despite
several orders of this Court. This creates a
doubt in the mind of a common ordinary
person. Either the police can say that they
338 INDIAN LAW REPORTS ALLAHABAD SERIES
have not got full powers or facilities or they
are not able to find out the person, who is
missing since 9th April, 2017 and this case
should be given to some other agency.

The opposite party no.2, wife of
the applicant, who is present, states before
this Court that she has disclosed to the
Police regarding whereabouts of the
applicant but the Police reaches the place
after giving space to the applicant to flee
from there. It has also been brought to the
knowledge of the Court that several cases,
wherein maintenance has been awarded by
the orders of the court, are pending and
even notices have not been served upon the
parties due to which women are suffering,
as in the present case, which is the best
example of harassment faced by the women
even after passage of nearly five years from
the date of orders in her favour.

An Intervention Application has
been filed by Mr. Rahul Mishra, Advocate
on behalf of one Laxmi Prasad Upadhyay,
who happens to be the father of the
applicant. In the affidavit filed in support of
the intervention application, it has been
stated that it is only because of the
applicant's mental imbalance induced due
to long standing acrimony, differences,
disputes with opposite party no.2 that he
went missing and could not be found till
date despite Gumshudagi Report lodged in
the year 2017 itself. It is further stated that
neither he nor any of his relatives have any
knowledge about the whereabouts of the
applicant-Arvind Kumar Upadhyay and
therefore, he and his wife who are ailing
senior citizens may be rescued from the
police authorities, who are harassing and
victimising
them
on
the
pretext
of
complying with various orders of the
Hon'ble
Court.
In
the
intervention
application, it has also been stated that
during the pendency of the present
application, the applicant-Arvind Kumar
Upadhyay suffered with mental imbalance
and was subjected to treatment at Mental
Hospital, Varanasi and while he was
receiving treatment, he left the house and
went missing since 9th April, 2017, true
copies of medical treatment from Mental
Hospital, Varanasi has been enclosed as
Annexure-1 to the affidavit accompanying
the Intervention Application.

To the averments made in the
affidavit accompanying the Intervention
Application, opposite party no.2 submits
before this Court that the applicant is not
missing anywhere, he has deliberately left
his house and is hidden somewhere. The
father and other family members of the
applicant have also helped him only in
order to disobey the orders of the court
below dated 4th November, 2016 and dated
8th November, 2016. Opposite party no.2
further submits that after the orders of the
court below dated 4th and 8th November,
2016, father of the applicant (Intervenor
before this Court) has deliberately sold his
properties only for harassing opposite
party no.2 and her female child as well as
to disobey the orders of the court below
and this Court. Opposite party no.2 further
submits that the averment made in the
intervention application that the applicant
was suffering from some mental imbalance
for which his treatment was going on in
Mental Hospital Varanasi, is also incorrect,
because the medical prescriptions, which
have been enclosed along with the affidavit
accompanying the intervention application,
do not establish as to the exact mental
ailment of the applicant. Lastly, opposite
party no.2 submits that the conduct of the
father of the applicant (Intervenor) and
other family members of the applicant is
doubtful.

Prima facie, the submissions
made by opposite party no.2 appears to be
correct.
4 All. Arvind Upadhyay Vs. State of U.P. & Anr.
339

Opposite party no.2 may file
response,
if
any,
to
the
aforesaid
intervention application on or before the
next date.

In this case, there is a question of
maintenance of a married woman and her
small daughter in these hard days. Now
when the husband of a woman (applicant
and opposite party no.2 herein) is not
available, then her mother-in-law and
father-in-law, who are like her father and
mother, also become their responsibility.
After marriage, a woman's husband and inlaws are everything. In this case, there is a
question of peaceful life, safety and
education of a girl child, who is none other
but grand-daughter of the parents of the
applicant. In-laws of a woman or grand
parents of a girl child cannot leave her
daughter-in-law or grand daughter alone if
the husband of said woman or father of the
said girl child, is missing.

In view of the present facts and
circumstances of the case, this Court is left
with
no
option
but
to
direct
the
Commissioner of Police, Varanasi to
appear before this Court for explaining the
fair conduct of the Police of District
Varanasi. However, seeing the intricacies,
this Court constrains itself in passing such
orders without affording one opportunity to
such a Senior Officer of the Police
Department at Varanasi. This Court,
therefore, directs the Commissioner of
Police, Varanasi to file his personal
affidavit categorically explaining as to why
the applicant is not traceable by the Police,
despite the fact that a first information
report about the missing of the applicant
has been lodged on 16th May, 2018 at
Sarnath Police Station, Varanasi and
various orders have been passed by this
Court for production of the applicant
before the Court. In the affidavit it shall
also be disclosed about the prima facie
observations made by this Court herein
above. In the affidavit, it shall also be
indicated as to how many days, the
applicant shall be traceable by the Police.
The affidavit shall be filed on or before the
next date i.e. 29th September, 2021.

Seeing this pitiable predicament of
a woman, who has been grappling from pillar
to
post
and
getting
hoodwinked
by
multifarious
impediments,
which
are
purportedly for the objective of harbouring
the applicant from the shrewdness of this
Court, excogitated by the family of the
husband, is an archetype illustration of the
loopholes in way of our criminal justice
system. To counteract and proscribe kindred
occurrences in future and to safeguard the
right to maintenance of wives, this Court
directs the Commissioner of Police, Varanasi
also to find out properties/whereabouts of the
applicant as well as in-laws of opposite party
no.2 promptly and after searching the same,
in any one of the property/whereabout, he
shall ensure that opposite party no.2 and her
daughter are permitted to stay, so that the
orders of the court below dated 4th and 8th
November, 2016 may be complied with, as
interim order granted earlier by this Court
staying the operation of the same has not
been extended and same stood discharged
earlier. He shall also take assistance of
opposite party no.2 i.e. wife of the applicant
in tracing him as well as finding out the
properties of the applicant and his father.

On the next date, the District
Judge,
Varanasi
as
well
as
the
Commissioner of Police Varanasi, shall
inform the Court of the similar cases,
where the maintenance has been awarded
by the courts but the same has not been
executed, as summons have not been served
till date.

On earlier occasions, the Court
has been informed that the applicant is not
missing and he is in contact with his
340 INDIAN LAW REPORTS ALLAHABAD SERIES
counsels, who are not present in the Court
today. On the last occasion also i.e. 1st
March, 2021, learned counsels for the
applicant were not present.

The appearance of Mrs. Alka Singh
and Mr. Vipin Kumar Singh, Advocates, who
have filed their vakalatnama on behalf of the
applicant in the present application and also
appeared earlier, before the Court on his
behalf, are necessarily required in the present
strange case.

The Secretary, Allahabad High
Court Bar Association, Allahabad shall
ensure that Mrs. Alka Singh (A/A-0060/16)
and nor Mr. Vipin Kumar Singh, Advocates,
(En. No.-04687105, AOR No.-A/V.-0438/12,
Mobile No. 9415630302), resident of 148A,
N.B. H.C., Allahabad, appear in the Court on
the next date i.e. 29th September, 2021.

Put
up
this
case
on
29th
September, 2021 at 02:00 p.m.

A copy of this order shall be
provided to the learned A.G.A., who shall
communicate the same to the District
Judge, Varanasi, Commissioner of Police,
Varanasi as well as to the Secretary,
Allahabad High Court Bar, Association for
necessary compliance by Wednesday i.e.
15th September, 2021.

The party shall file computer
generated copy of this order downloaded
from the official website of the High Court,
Allahabad, self attested by the party
concerned along with a self attested
identity proof of the said person(s)
(preferably Aadhar Card) mentioning the
mobile number(s) to which the said Aadhar
Card is linked.

The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court, Allahabad and shall made a
declaration of such verification in writing."

3. Thereafter on 6th October, 2021,
27th October, 2021, 17th November, 2021
and 16th December, 2021, this Court
passed orders for tracing out the applicant,
namely, Arvind Upadhya. Ultimately, when
the matter was taken up on 10th March,
2022, the Court has been informed by Mr.
J.K. Upadhaya, learned A.G.A. for the
State that the applicant has been recovered
by the Police in compliance of the orders of
this Court passed earlier. On the said date,
for amicably settling the dispute between
the applicant and opposite party no.2, this
Court passed following order:

"Mr. J.K. Upadhyay, learned
A.G.A for the State submits that in
compliance of the order of the Court dated
16th December, 2021, he has received
instructions and the same has been placed
before this Court, which is taken on record.

Pursuant to the order of this
Court dated 16th December, 2021, the
applicant, namely, Arvind Upadhyaya, has
been found by the team of the Police so
constituted by the Commissioner of Police,
Varanasi in compliance of the earlier
orders of this Court. Since the applicant
and his parents have misled the government
officials and police in order to avoid the
orders of this Court as well as court below,
a first information report has been lodged
by Sub-Inspector, Police Station- Sarnath,
District
Varanasi
on
4th
January,
2022,against the applicant and his father
and
mother,
namely,
Laxmi
Shanker
Upadhyay and Radhika Devi, which has
been registered as Crime No. 0006 of 2022
under Sections 419, 420, 467, 468, 471,
182, 188 and 120-B I.P.C., Police StationSarnath, District Varanasi pursuant to
which the applicant has been taken into
custody and sent to jail. At present, the
applicant is in District Jail, Varanasi.
4 All. Arvind Upadhyay Vs. State of U.P. & Anr.
341

From the perusal of the entire
material available on records of the present
application, it is apparently clear that the
applicant along with his parents is tried to
disobey the orders of this Court and the
court below and have also misled the
authorities concerned and this Court,
hence the appearance of the applicant is
required for appropriate adjudication of the
matter.

Accordingly, the Commissioner of
Police, Varanasi and the Superintendent of
District Jail, Varanasi are directed to
ensure the appearance of the applicant
before this Court on 23rd March, 2022 in
the judicial custody.

On the basis of instructions so
received by Mr. J.K. Upadhyay, learned
A.G.A. for the State and Mr. Gaurav Pratap
Singh, learned counsel for the State, it is
also clear that the parents of the applicant,
namely, Laxmi Shanker Upadhyay and
Radhika Devi had also helped the applicant
in running away from the Police authorities
and in disobeying the orders of this Court
and the court below. As such, the presence
of the parents of the applicant is also
required.

Mr.
J.K.
Upadhyay,
learned
A.G.A. for the State and Mr. Gaurav Pratap
Singh, learned counsel for the State are
directed to make all endeavour to ensure
that the parents of the applicant, namely,
Laxmi Shanker Upadhyay and Radhika
Devi, are appeared before this Court on the
next date for which they shall take help of
the concerned Police authorities.

For proper adjudication of the
present matter, Mrs. Anjali Upadhyay,
opposite party no.2, who is present in
person, is also directed that on the next
date, she shall appear before this Court
along with her parents.

List this case on 23rd March,
2022 at 02:00 p.m.

A copy of this order be provided
to Mr. J.K. Upadhyay, learned A.G.A. for
the State and Mr. Gaurav Pratap Singh,
learned counsel for the State by tomorrow
i.e.
11th
March,
2022,
who
shall
communicate the same to Commissioner of
Police, Varanasi and the Superintendent of
District Jail, Varanasi for necessary
compliance of this order henceforth.

The Registrar General is also
directed to communicate this order to the
Commissioner of Police, Varanasi and the
Superintendent of District Jail, Varanasi
for necessary compliance."

4. While exercising its extra ordinary
power under Section 482 Cr.P.C., seeing
the fact that woman along with her
daughter i.e. opposite party no.2 filed a
case against her husband i.e. the applicant
herein under the provisions of Protection of
Women from Domestic Violence Act, 2005
before the court below and the court below
passed order dated 4th November, 2016
directing the husband to provide a separate
living room to wife and daughter as also to
give Rs. 1000/- for their maintenance. On
the application filed by wife i.e. opposite
party no.2, the court below passed another
order dated 8th November, 2016 that if the
husband i.e. applicant does not comply the
order dated 4th November, 2016, the
Station House Officer, Sarnath shall ensure
the compliance of the said order. Against
both the orders, the present application has
been filed by the husband i.e. applicant,
who obtained an interim order dated 5th
December, 2016 ex parte, whereby the
orders dated 4th and 8th November, 2016
were stayed till the next date of listing.
Thereafter the wife i.e. opposite party no.2
appeared in person in the present case to
defend her case in the present application.
When the Court asked the learned counsel
for the applicant to ensure production of the
342 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant before the Court, it has been
informed by the learned counsel for the
applicant that he is missing since 9th April,
2017 and a first information report about
his missing has also been lodged on 16th
May, 2018 at Police Station-Sarnath,
District-Varanasi. Learned counsel for the
applicant has further informed the Court
that now he has no instruction on behalf of
the applicant, as he is not in his contact.
Thereafter, this Court had come to a
conclusion that the applicant is escaping
from his wife and daughter only in order to
avoid the orders of the Court, whereby he
has been directed to pay maintenance to his
wife and daughter. Therefore, this Court
only in order to ensure that maintenance is
provided to a woman and her daughter in
accordance with law, for the same various
orders have been passed including the order
discharging the interim order passed in the
present application dated 5th December,
2016. In between, on the discharge
application made by both the learned
counsel appearing for the applicant that
neither they had any instruction on behalf
of the applicant nor they were in contact
with him, this Court discharged the
appearance of both the counsel in the
present application and only for ensuring
the maintenance for being provided to
opposite party no.2, this Court did not
dismiss
the
present
application
and
proceeded further. Therefore, this Court
wanted to resolve the matters relating to
Family and Marital Disputes arrived
between the parties, who are none other
than the husband and wife, who have a
daughter.

5. This Court very well knew that if any
dispute arrives between the husband and
wife, the challenge is mostly faced by
females because they are assumed to handle
the age-old responsibility of taking care of the
family and children, it is more of a challenge
for a female because when she is earning it
becomes even more difficult because she is
entrusted with two responsibilities that is of
taking care of the house and the children and
also to take care of the work and the career
they have persuade. One of the major reasons
in India for the marital conflict or even
dispute to arise is when a woman is married
to a man and a man is married to a woman
then it is not just enough that they have
married just each other but they actually get
married to each other's family too. Especially
in India, there is a lot of involvement of each
other's family into the marital life which can
sometimes create a problem. Another reason
that can create a problem in the marital
relations is dealing with each other's habits
and addictions. For example, addiction to
alcohol, smoking, television and so on, or the
habit of simply coming late back home.
These habits might not just give a way to a
conflict but can cause disputes for the same.
The major objective of this paper is to
highlight what problem a woman faces or
how domestic violence is a stigma to the
society but it is to see how our legal system
handles the above-mentioned problems with
the tool called Mediation.

6. Considering the aforesaid facts,
when the applicant has been recovered by
the respondent-Police in compliance of the
orders of this Court passed from time to
time, this Court vide order dated 10th
March, 2022 directed the authorities
concerned to ensure the presence of
applicant and his parents before this Court
on the next date. The Court has also
required the opposite party no.2 to remain
present on the next date.

7. In compliance of the order of the
Court dated 10th March, 2022, the
applicant, namely, Arvind Upadhya has
4 All. Arvind Upadhyay Vs. State of U.P. & Anr.
343
been produced before this Court today in
the judicial custody from District Jail,
Varanasi by Mr. Shabir, Sub-Inspector, Mr.
Anvaar Ahmad, Head Constable and Mr.
Ram Kumar, Constable of Police Lines,
Commissionerate, Varanasi. Signatures of
the applicant has also been identified by the
said Police Personnels.

8. Pursuant to the order dated 10th
March, 2022, the father and mother of the
applicant,
namely,
Laxmi
Shanker
Upadhyay and Radhika Devi have also
been produced by Mr. Sudhakar, SubInspector, Police Station-Sarnath, DistrictVaranasi and their signatures have also
been identified by Mr. Sudhakar.

9. Mrs. Anjali Upadhyay, opposite
party no.2 is also present in the Court
today. Despite the fact that this Court on
10th March, 2022 has orally directed Mrs.
Upadhyay to appear on the next date along
with her father or brother so that a concrete
mediation may be done between the parties,
she has not brought her father or brother to
this Court.

10. Since the dispute between the
parties is matrimonial in nature, this matter
has been taken up in the Chambers of the
Court.

11. To arrive at a amicable settlement
between the parties, this Court first called
the applicant and his parents to have their
say in the matter and this Court asked them
as to why they are not keeping the opposite
party no.2 Anjali Upadhyay and her
daughter and they are not giving money for
the house and alimony for his wife and
child for their livlihood as maintenance.
This Court also asked the applicant as to
why he was running away from his wife i.e.
opposite party no.2 on which they told that
they want to keep Anjali and her daughter
but the opposite party no.2 did not live with
her in-laws. Opposite party no.2 is not a
normal woman. She used to harass, abuse
and beat the applicant and his parents.