# Smt. Gudiya and Anr v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1606
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-11
- **Case number:** Habeas Corpus Writ Petition No. 4583 of 2013
- **Bench:** Kalimullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-gudiya-and-anr-v-state-of-u-p-and-ors-42822
- **Pages:** 3

## Headnote

Constitution of India, Art.-226-Habeas
Corpus petition-by husband petitionerbeing employee of Government pressallegation against corpus found falserather the petitioner himself guilty of
maltreatment to his wife and two minor
children-petition disposed of with cost of
Rs. 50,000/- apart from Rs. 25000/-
towards
expenses-keeping
in
view
pendancy of suit of restitution of conjugal
rights-petition disposed of with further
direction to govt press(the employer) to
deduct Rs. 5000/- from salary of petitioner
and send to the corpus through many
order
on
monthly
basis.
3 All] Smt. Gudiya and Anr. Vs. State of U.P. and Ors.
1607
Held: Para-6 & 7-
6-Petitioner Rajendra Kumar Saroj has
stated that he has already filed a petition
for restitution of his conjugal right and
he is ready and willing to keep his wife
and her children with him.

7-In
the
totality
of
facts
and
circumstances of the case, it appears
essential in the interest of justice to
direct petitioner Rajendra Kumar Saroj
to pay monthly allowance of Rs. 5,000/-
to his wife Smt. Neeta Bhartiya for her
maintenance
and
also
for
the
maintenance of her two minor children
till any other competent court of law
awards any maintenance to them.

## Text

1606 INDIAN LAW REPORTS ALLAHABAD SERIES
reading of Hon. Apex Court decision in
the case of Aleque Pademsee (Supra). The
Hon'ble Apex Court observed in that case
that where the first information report is
not
registered
by
the
police,
the
complainant has remedy under Section
190(1) (a) read with Section 200 of the
Code. The Hon'ble Full Bench has instead
read in ,' 'Even where the informant's plea
for a direction for investigation under
section 156(3) Cr.P.C is refused by the
Magistrate, as held by the three judge
bench of the Supreme Court in Aleque
Padamsee (Supra)'.

19. The Hon'ble Apex Court had not
discussed or considered the scope of
application under section 156(3) or the impact
of the order passed under Section 156 (3)
Cr.P.C. on the aggrieved complainant on the
rejection of the application. Similarly in the
case of Sakhiri Vasu (Supra), the Hon'ble
Court did not forbid the maintainability of
revision against the order passed under section
156(3) Cr.P.C. The court simply observed that
if the first information report was not
registered, the aggrieved might, instead of
rushing to the High Court to file writ petition
or a petition under Section 482 Cr.P.C., utilize
the remedy under Sections 36, 154(3) and
156(3) Cr.P.C. or by filing a criminal
complaint under Section 200 Cr.P.C. Thus, it
appears the Hon'ble Apex Court never meant
to shut the door for the aggrieved to agitate the
order of rejection under Section 156 (3)
Cr.P.C. in a revision. Therefore, the
conclusion of the Full Bench on question-B
that an order made under Section 156(3)
Cr.P.C. is an interlocutory order, remedy of
revision against such an order is barred by sub
section (2) and Section 397 Cr.P.C. requests
further consideration by a Larger Bench.

20. Record of this case be placed
before Hon'ble the Chief Justice with the
request that if it is found proper and
expedient the matter be referred to a Larger
Bench for consideration of the question,

" Whether an order made under
Section 156 (3) Cr.P.C. is an interlocutory
order and remedy of revision against such
an order is barred under sub Section (2) of
Section 379 Cr.P.C."

21. The maintainability of the
revisions filed shall abide by the judgment
of the Court after reference.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2013

BEFORE
THE HON'BLE KALIMULLAH KHAN, J.

Habeas Corpus Writ Petition No. 4583 of
2013

Smt. Gudiya and Anr.... Petitioners
Versus
State of U.P. and Ors.... Respondents

Counsel for the Petitioners:
Sri Deepak Tripathi

Counsel for the Respondents:
C.S.C., Sri Nishant Singh

Constitution of India, Art.-226-Habeas
Corpus petition-by husband petitionerbeing employee of Government pressallegation against corpus found falserather the petitioner himself guilty of
maltreatment to his wife and two minor
children-petition disposed of with cost of
Rs. 50,000/- apart from Rs. 25000/-
towards
expenses-keeping
in
view
pendancy of suit of restitution of conjugal
rights-petition disposed of with further
direction to govt press(the employer) to
deduct Rs. 5000/- from salary of petitioner
and send to the corpus through many
order
on
monthly
basis.
3 All] Smt. Gudiya and Anr. Vs. State of U.P. and Ors.
1607
Held: Para-6 & 7-
6-Petitioner Rajendra Kumar Saroj has
stated that he has already filed a petition
for restitution of his conjugal right and
he is ready and willing to keep his wife
and her children with him.

7-In
the
totality
of
facts
and
circumstances of the case, it appears
essential in the interest of justice to
direct petitioner Rajendra Kumar Saroj
to pay monthly allowance of Rs. 5,000/-
to his wife Smt. Neeta Bhartiya for her
maintenance
and
also
for
the
maintenance of her two minor children
till any other competent court of law
awards any maintenance to them.

(Delivered by Hon'ble Kalimullah Khan, J.)

1. Heard learned counsel for the
parties and perused the record.

2. Learned A.G.A. Sri Ashutosh
Kumar Tripathi has filed affidavit sworn
by Nand Prakash Maurya Tehsildar Sadar,
District- Allahabad. In para 6 of the said
affidavit, it has been contended that the
order dated 5.4.2013 and 10.5.2013
passed by this Court has already been
complied with.

3.

Learned
counsel
for
the
respondent No. 4 does not dispute the
aforesaid fact.

4. Before parting with this writ
petition, it appears essential in the interest of
justice to point out something relevant in
this matter and pass suitable orders in the
ends of justice. Petitioner Rajendra Kumar
Saroj has filed this writ petition of habeas
corpus on false grounds only to harass his
wife Smt. Neeta Bhartiya and two minor
children below three years of age born out
of this wedlock. The corpus Smt. Neeta
Bhartiya along with two minor children and
her old father (respondent No. 4) appeared
in the Court and stated that her father had
not illegally detained her and her two minor
children
rather
on
being
tortured
continuously by her husband petitioner
Rajendra Kumar Saroj who used to practice
cruelty on one pretext or the other upon her
and took shelter at her Maika in the house
of her father and her husband did not pay
even
a
single
penny
towards
their
maintenance. He is Government employee
and is presently posted as a clerk in
Government Press at Allahabad as he
himself deposed this fact in his affidavit
sworn by him and filed on 23.1.2013 in
this writ petition. Her father (respondent
No.4) is a poor old man and he has no
sufficient means to maintain the corpus
Smt. Neeta Bhartiya and her children. At
present more than one year has elapsed
but her husband is not taking care for
them in the matter of their maintenance.

5. The corpus Smt. Neeta Bhartiya
and her both minor children have already
been set at liberty and petitioner Rajendra
Kumar Saroj has already been imposed
cost Rs. 50,000/- for filing the petition on
false grounds apart from Rs. 15,000/- as
expenses incurred by his wife along with
children and respondent No.4, her father
in attending the court.

6. Petitioner Rajendra Kumar Saroj
has stated that he has already filed a
petition for restitution of his conjugal
right and he is ready and willing to keep
his wife and her children with him.

7. In the totality of facts and
circumstances of the case, it appears
essential in the interest of justice to direct
petitioner Rajendra Kumar Saroj to pay
monthly allowance of Rs. 5,000/- to his
wife
Smt.
Neeta
Bhartiya
for
her
maintenance and also for the maintenance
1608 INDIAN LAW REPORTS ALLAHABAD SERIES
of her two minor children till any other
competent court of law awards any
maintenance to them.

8. Accordingly, this petition of habeas
corpus stands disposed of with the direction
that the petitioner Rajendra Kumar Saroj shall
pay Rs. 5,000/- per month to his wife Smt.
Neeta Bharatiya for her and her children's
maintenance
till
they
are
awarded
maintenance by any other competent court of
law.

9.

D.D.O.
Government
Press
Allahabad is directed to deduct Rs. 5,000/-
per month plus money order charges from
the salary of petitioner Rajendra Kumar
Saroj S/o late Sunder Lal R/o 84 Nayapura
Stanly Road, P.S.- Shivkuti, District-
Allahabad and send it through money orders
to Smt. Neeta Bhartiya D/o Ram Prasad
Bharatiya R/o 1563 Kidwai Nagar Allapur,
Police Station- George Town, Allahabad
month to month.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2013

BEFORE
THE HON'BLE RAM SURAT RAM (MAURYA), J.

Civil Misc. Writ Petition No. 6549 of 1990

Bhuley & Others... Petitioners
Versus
Assistant Director of Consolidation &
Ors... Respondents

Counsel for the Petitioners:
Dr. V.K. Rai, Sri Vijay Kumar Rai
Sri Prabho Kant, Sri A.K. Jaiswal
Sri M.D. Singh, Sri Sankatha Rai

Counsel for the Respondents:
S.C., Sri K.R. Sirohi, Sri Yogesh Kumar
Singh, Sri G.N. Verma, Sri Dr. Madhu
Tandon, Sri S.M. Nazar Bokhari, Sri
Nazaruddin, Sri Sanjay Kr. Singh, Sri
Sharfuddin Ahmad, Sri Nazar Bokhari.

U.P. Consolidation of holdings Act 1953Section 5(i)(c)(ii)-Sale deed executed on
4.9.82-notification in the unit under section
4(2)(b)-published
on
24.09.82-whether
such transaction hit by section 5(i)(c)(ii) in
absence of permission to sale the part of
holdings?-held-'no' consolidation operation
come into existence only after publication
notification-order passed by consolidation
authorities-illegal
quashed-consequential
direction given.

Held: Para-12
Section 5 (1) (c) (ii) of the Act imposes a
restriction on transfer by way of sale, gift or
exchange of the holding or any part of it in
the consolidation area, except with prior
permission
of
Settlement
Officer
Consolidation. The consolidation area has
been defined as "the area in respect of
which a notification under Section 4 has
been issued". Mode of issuing notification
under Section 4 has been provided under
Section 4 (2) (b) by publishing the
notification in the official Gazette and in
each unit in the said area. Under Section 2
(8) of the Act, publication in the unit has to
be made by reading out, the document in
the unit on a date of which prior notice shall
be given by beat of drum, and proclamation
by beat of drum, or, in any other customary
mode, in the unit of the fact that the
document is open to public inspection at an
appointed place and time. Thus so long as
notification is not published in the unit the
restrictions imposed upon Section 5 (1) (c)
(ii) of the Act will not apply. Use of different
words under Section Section 5 (1) and 5 (2)
of the Act are nothing to do with the
restriction for transfer, which has been
imposed in the consolidation area, which
has a definite meaning under the Act. In the
cases relied upon by the counsel for the
petitioners, this Court has rightly held that
so long as notification under Section 4 (2)
(b) of the Act is not made in the unit, the
restrictions under Section 5 (1) (c) (ii) will
not apply. I do not find any reason to take a
different
view.
Admittedly
notification