Sri Tarun Kumar Pandey, learned counsel for the revisionist, Sri Diwakar Singh, learned counsel for the State and Sri Vinay Kumar Tiwari, learned counsel for respondent no.2.
Vide order dated 29.3.2018, delay in filing the revision has already been condoned. In view of this, revision is formally admitted and with the consent of parties, same is heard finally.
On 24.11.2015, respondent no. 2, Reshma Parveen, wife of the revisionist Mohd. Umar, filed an application under Section 125 Cr.P.C. seeking maintenance of Rs.11,000/- per month for herself and for her minor son, aged about six years. It has been pleaded by the claimant that her marriage was solemnized on 4.3.2013 and despite sufficient dowry was given in the marriage, she was subjected to cruelty and harassment for demand of dowry. She has stated that on 6.6.2015, after beating her, an attempt was also made to burn her and only after reaching of her parents, she could be saved. She has stated that she is living separately, is not in a position to maintain herself whereas the revisionist is working as contractor earning Rs.50,000/- per month from the said business and that apart he has 10 auto-rickshaws from which he is earning Rs.45,000/- per month.
A reply to the above application was filed by the revisionist denying all the contentions. In the Court, the revisionist cross-examined his wife but was proceeded ex parte at the time of cross-examination of other witnesses. In absence of the revisionist, on 30.7.2016, an ex parte order was passed against accused revisionist directing him to pay Rs.5000/- per month to respondent no.2 as maintenance amount.
On 30.9.2016, revisionist filed an application under Section 126(2) of Cr.P.C. for setting aside the ex parte order on the ground that as his father was not well, he failed to appear before the court and when he contacted his lawyer on 26.9.2016, he came to know about the passing of ex parte order against him. By the impugned order dated 4.4.2017, the court below has rejected the application as filed by the revisionist under Section 126(2) of Cr.P.C. holding that no ground for setting aside the ex parte order has been made out and there is tendency on the part of the husband to prolong the matter filed under Section 125 of Cr.P.C. Learned court below has further held that the revisionist has not filed any medical certificate showing the fact that onwards 25.6.2016, his father was not well till the passing of the order. It is this order which has been assailed in this revision.
Counsel for the revisionist submits:
(i) that the order impugned has been passed contrary to the settled position of law, which provides the applicant to file appropriate application seeking setting aside ex parte order.
(ii) that sufficient cause was shown by the revisionist for not appearing in the court and as his father was not well, he could not appear.
(iii) that lawyer engaged by the revisionist also could not appear for the reason best known to him.
On the other hand, supporting the impugned order, it has been argued by the counsel for the wife that application under Section 125 of Cr.P.C. was filed on 24.11.2015 and till date, only about Rs.30,000/- has been given by the revisionist, the wife and her minor child are literally starving. He submits that no sufficient cause was shown by the revisionist for his absence before the Court and therefore, the court below was justified in passing the impugned order. If the revisionist is not in a position to pay the maintenance amount as warded by the court below, he be immediately sent behind the bar for wilful disobedience of the order passed by the court below.
I have the parties and perused the records.
From the pleadings and documents, as filed by the parties, it is apparent that since 24.11.2015, the wife is claiming maintenance for herself and for her minor son but till date, except getting dates from the court, nothing substantial has been given to her. Even the court below has not awarded any interim maintenance in favour of wife and when ex parte order was passed granting maintenance of Rs.5000/- to the wife, taking the advantage of provisions of law, the husband is delaying the matter on one pretext or the other.
In the facts and circumstances of the case, this court finds no substance in the arguments of the husband that the ex parte order deserves to be recalled. The revisionist has failed to point out any good reason duly supported by his documents for setting aside the ex parte order. Even otherwise, the court has awarded reasonable maintenance allowance to the wife where she is required to maintain herself and her son. The order impugned does not call for any interference and the same is accordingly affirmed. The revision as filed is dismissed.
The maintenance amount has been awarded in favour of the wife w.e.f. 24.11.2015 and if the total amount is calculated till June, 2019, it comes to about Rs.2,15,000/-. Therefore, considering all these aspects of the case, revisionist is directed to deposit Rs.1 lakh before the court below within one month from today and remaining amount shall be deposited by him within further three months. He is also directed to pay monthly maintenance amount regularly in the first week of every month. If any default is committed by the revisionist, the wife would be at liberty to file appropriate application and without making any delay, the court below would be obliged to pass suitable order on that application. Even if despite order passed by this Court and the court below, the husband fails to pay the maintenance amount, he would be dealt strictly in accordance with law. The husband shall also pay Rs.5,000/-, as cost of this litigation to the respondent-wife.
Order Date :- 26.7.2019 RK/SK