Rule.
Mr.Shailesh Sharma, learned counsel for the respondent-wife waives service of notice of Rule on behalf of respondent-wife.
By way of present revision application, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1073, the applicant has prayed to quash and set aside the order passed below Exhibit 1 dated 19th July, 2011 by the learned Principal Judge, Family Court, Surat in Criminal Miscellaneous Application No.24 of 2011 and also prayed to quash and set aside the order dated 22nd March, 2010 passed by the learned Principal Judge, Family Court, Surat in Criminal Miscellaneous Application No.593 of 2009.
Short facts of the case is that the applicant-husband and respondent-wife got married on 16th May, 2005. They have two daughters out of their wedlock. After 13 to 14 years of marriage life, there were differences and disputes between then and therefore, they separated from the joint family in the year 2004. Therefore, the respondent-wife left her husband and went to her parental house in the year 2005 and in the meantime, the applicant-husband shifted to Ankleshwar. Thereafter the respondent-wife preferred an application under Section 125 of the Code of Criminal Procedure for maintenance from the applicant-husband. As the applicant-husband was residing at Ankleshwar, he was not aware about the said fact and the notice was served upon the father of the applicant. As the applicant-husband and his father also have disputes, they were residing separately and even father of the applicant has filed Civil Suit against the applicant, the father of the applicant-husband never communicated the said notice issued by the Family Court, Surat to the applicant-husband.
Hence, vide ex-parte order dated 22nd March, 2010 the learned Principal Judge, Family Court, Surat partly allowed the Criminal Miscellaneous Application No.593 of 2009 and directed the present applicant-husband to pay Rs.2,500/- per month to the respondent-wife as maintenance.
The respondent-wife has produced copy of the said order in Regular Civil Suit No.506 of 2005, in which along with applicant, respondent-wife is also a party. Therefore, father of the applicant informed the applicant about passing of the order on 22nd March, 2011. Therefore the applicant-husband filed an application under Section 126(2) of the Code of Criminal Procedure for setting aside the ex-parte order.
After hearing both the sides, the learned Principal Judge, Family Court, Surat has rejected the application of the applicant on the ground that the application is not filed within three months from the date of order passed in application under Section 125 of the Code of Criminal Procedure.
Being aggrieved by and dissatisfied with the said order, the applicant-husband has preferred the present revision application.
Heard Mr.Kashyap Joshi, learned counsel for the applicant-husband and Mr.Shailesh Sharma, learned counsel for the respondent-wife.
Mr.Joshi, learned counsel for the applicant, states that the order impugned in the present application is absolutely unjust and illegal and is required to be quashed and set aside by this Court. He has contended that summons of the application under Section 125 of the Code of Criminal Procedure is served upon the father of the applicant and not upon the applicant, therefore, it cannot be said that summons is properly served. He has further contended that respondent-wife has not made any proper attempt to serve the summons on the applicant-husband. He has further contended that as the applicant and his father is not having good terms, father of the applicant has not informed him about the application filed by the respondent-wife. Thus, the applicant is not in knowledge about the application filed by the respondent-wife. He has further contended that the learned Principal Judge, Family Court, Surat has not properly considered the application filed under Section 125 of the Code of Criminal Procedure and partly allowed the said application in absence of the present applicant. He has further contended that the respondent-wife is having sufficient means to maintain herself and is earning Rs.8,000/- to Rs.9,000/- and even the respondent-wife is freely using the entire ground floor of his father-in-law's property with all facilities. Mr.Joshi has further contended that thereafter when the applicant came to know about ex-parte order dated 22nd March, 2010 passed in Criminal Miscellaneous Application No.593 of 2009 on or about 22nd March, 2011 through his father, he preferred an application under Section 126(2) of the Code of Criminal Procedure for setting aside the said ex-parte order. He has contended that the learned Principal Judge, Family Court, without considering the facts of the case and without going into the merits of the case, only on the ground that the application is not filed within three months from the date of passing of order on application under Section 125 of the Code of Criminal Procedure, rejected the application of the applicant-husband. Mr.Joshi has contended that for the fair trial, the order impugned in the present revision application is required to be quashed and set aside and the concerned Court may be directed to conduct the matter afresh.
As against this Mr.Sharma, learned counsel for the respondent-wife, states that the order passed by the learned Principal Judge, Family Court is absolutely just and proper. He has contended that so far as argument of the learned counsel for the applicant that respondent-wife has not made proper attempt to serve the applicant is concerned, is absolutely wrong. First the summons was issued to the applicant at his Ankleshwar address, but as the applicant was not residing at the said address, summons was served upon the father of the applicant. He has contended that the applicant was in knowledge about the application filed by the respondent-wife, but he has deliberately chosen not to appear in the matter. He has contended that the applicant remained negligent. Therefore, ex-parte order came to be passed. He has further contended that cruelty was meted out by the applicant and his family members upon the respondent-wife. He, therefore, contended that the order dated 22nd March, 2010 passed by the learned Principal Judge, Family Court, Surat is absolutely just and proper and present revision application deserves to be rejected.
Heard learned counsel for respective parties and also perused papers produced before me. Looking to the evidence produced on record, I am of the opinion that proper opportunity is required to be given to the applicant-husband to substantiate his case. Without proper opportunity of hearing being afforded to the applicant-husband, the learned Principal Judge, Family Court, Surat has passed ex-parte order awarding maintenance amount of Rs.2,500/- per month to the respondent-wife. At the same time, it also appears that the applicant-husband and his family members have meted-out cruelty upon the respondent-wife and therefore, some compensation is required to be awarded to the respondent-wife.
In view of above, present revision application is allowed. The order dated 19th July, 2011 passed in Criminal Miscellaneous Application No.24 of 2011 as well as order dated 22nd March, 2010 passed in Criminal Miscellaneous Application No.593 of 2009 are hereby quashed and set aside. The matter is remanded to the concerned Family Court for hearing afresh after affording opportunity of hearing to both the parties and decide the application on its own merits and in accordance with law. The applicant-husband is directed to deposit Rs.10,000/- before the concerned Family Court as compensation to the respondent-wife and respondent-wife is permitted to withdraw the said amount. Interim relief, if any, shall stand vacated. Rule is made absolutely accordingly. Office is directed to send Record and Proceedings, if any, to the Court concerned forthwith.
(Z.
K. Saiyed, J) Anup Top