Court No. - 49
Case :- APPLICATION U/S 482 No. - 12999 of 2021 Applicant :- Ajeet Opposite Party :- State Of U.P And Others Counsel for Applicant :- Sanjay Kr. Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Heard Sri Sanjay Kumar Srivastava, learned counsel for petitioner.
2. This petition under Section 482 Cr.P.C. has been filed seeking quashing of ex-parte order dated 03.04.2017, passed by learned Principal Judge, Family Court, Baghpat whereby an application moved by the wife of the present petitioner under Section 125 Cr.P.C. has been allowed and learned Principal Judge, Family Court has directed the petitioner to pay a sum of Rs. 7,000/- per month, as maintenance from the date of the order.
3. Learned counsel for petitioner submits that is an ex-parte order and in fact, petitioner had moved an application seeking setting aside of the ex-parte order, but that too has been rejected in Criminal Misc. Case No. 83 of 2019 vide order dated 19.02.2021 whereby the concerned court has rejected an application under Section 126(2) Cr.P.C.
4. Learned counsel for petitioner submits that in fact, a compromise was effected between the petitioner and his wife on 28.09.2016, therefore, he had not appeared before the court and was under an impression that his wife will honour the terms and conditions of the compromise and will not seek any further proceedings in the court of law. Thus, there was bonafide grounds for non-appearance of the petitioner, but that has been overlooked by the court concerned.
5. A perusal of the impugned order dated 19.02.2021 reveals that it is mentioned by the wife of the petitioner and not controverted by the present petitioner that on 23.11.2016 and 22.12.2016, petitioner had appeared and had filed vakalatnama of his counsel Sri Deepak Kumar. Thus, it is evident that this plea of non-attending the court on the basis of alleged compromise dated 28.09.2016, is not made out, inasmuch as, if this would have been factually correct, then there was no occasion for the petitioner to appear before the court below on 23.11.2016 and 22.12.2016. Thus, in my opinion, the court below has not erred in rejecting the application under Section 126(2) Cr.P.C., as petitioner has failed to make out a sufficient cause for setting aside of ex-parte order.
6. As far as merits of the case is concerned, learned counsel for petitioner submits that petitioner is a seasonal labour in brick kiln. Therefore, he is not in a position to pay maintenance @ Rs. 7,000/- per month. There is no documentary evidence, enclosed along with present petition under Section 482 Cr.P.C. to substantiate that petitioner is a seasonal labour in a brick kiln. Even, if minimum wages of unskilled labourer are taken into consideration, then on the date of the order, award of maintenance of Rs. 7,000/- per month, cannot be said to be excessive.
7. In view of such factual and legal position, petition is devoid of merits, deserves to be dismissed and is dismissed.
Order Date :- 28.7.2021 Vikram/-
Digitally signed by Justice Vivek Agarwal Date: 2021.07.28 18:05:55 IST Reason: Document Owner Location: High Court of Judicature at Allahabad