Court No. - 53
Case :- CRIMINAL REVISION No. - 2946 of 2018 Revisionist :- Amit Kumar Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Ajay Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Heard Sri Arjun Singh Yadav, learned counsel for the revisionist and Sri Indrajeet Singh Yadav, learned A.G.A. appearing for the State.
This Revision is directed against an order dated 13.07.2018 passed by the Principal Judge, Family Court, Hapur in Misc. Case no.239 of 2017, Amit Kumar vs. Km. Dimpi, rejecting a belated application under Section 126(2) Cr.P.C. filed along with application u/s 5 of the Indian Limitation Act seeking to set aside an ex parte order dated 02.12.2015 passed in Case no.6 of 2014 awarding the second opposite party maintenance in the percentage of 5.5 of his salary.
The revisionist is employed in the Indian Army. A reading of the impugned order shows that the revisionist’s wife Smt. Sharmishtha and the revisionist are an estranged couple. The couple have two daughters, Km. Shakshi and Km. Dimpi. The Army Authorities are deducting in accordance with Section 91 of the Army Act, 1950 and Rule 193 framed thereunder 27.5% in the maintenance for the benefit of the revisionist’s estranged wife and his other daughter Km. Shakshi by assigning 22% out of 27.5% deducted to the wife and 5.5% to the elder daughter. However, the Army Authorities have not made provision for the younger daughter leading the revisionist to file for maintenance for her under Section 125 Cr.P.C. before the Principal Judge, Family Court, Hapur. Since the revisionist did not appear in those proceedings, the Family Court, Hapur by an ex parte order dated 02.12.2015 awarded maintenance worked out in accordance with the same methodology at the rate of 5.5% of the revisionist’s salary w.e.f. the date of application which has been specified to be 03.03.2014 in the order dated 02.12.2015. In considering the motion brought to set aside the ex parte order, the Principal Judge, Family Court, Hapur has by the order impugned recorded a specific finding that the revisionist has been deliberately evading the process of court and avoiding appearance. It has been recorded by the court below that the prescribed limitation to bring an application u/s 126(2) Cr.P.C. is three months from the date of the order but the said application before the Family Court was made after a period of two years, regarding which there was no cogent explanation offered in the application u/s 5 of the Indian Limitation Act. It has been found by the Family Judge that the revisionist has not stated anywhere in his application as to when and on what date he acquired knowledge of the ex parte maintenance order dated 02.12.2015 and that the application has been casually worded that does not furnish good explanation for the delay and sufficient cause to condone the same.
It has been argued that since a divorce has taken place on 14.09.2015, as such, he is not liable to pay maintenance to his wife who is being paid by the Army Authorities. Therefore, he cannot be compelled to pay for his other daughter. It is urged that the revisionist is in the Indian Army and holds a transferable job, on which account he could not contest the case. He has emphasized that the mother of the opposite party, that is to say, his wife is getting maintenance at the rate of 22% of his salary and his elder daughter at the rate of 5.5% of his salary towards maintenance since 25.02.2015. He is the lone member of his family who has responsibility of elders in the family. He submits that the court below without considering these aspects has refused to set aside the maintenance order passed ex parte.
This Court has carefully perused the materials on record and finds that the revisionist has deliberately allowed the proceedings to go ex parte and sought to set aside maintenance order passed ex parte after two years so as to put the clock back to the point of commencement of proceedings. This amounts to an abuse of the process of court and does not entitle the revisionist to have the ex parte order set aside. Good reasons have been assigned by the Principal Judge, Family Court, Hapur to refuse the belated application u/s 126(2) Cr.P.C. that do not suffer from any such illegality as may warrant interference in the exercise of the revisional jurisdiction of this Court. Also, no prejudice is caused to the revisionist by the order impugned as he has the liability to provide for both of his daughters and the second opposite party is his daughter. She has been awarded maintenance at the same rate as the other daughter has been given by the Army Authorities. There is no infirmity in the order impugned.
This revision fails and is dismissed in limine.
Order Date :- 30.8.2018 Anoop/ Shahroz