Court No. - 80
Case :- APPLICATION U/S 482 No. - 12368 of 2021 Applicant :- Rahul Saroj Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Dinesh Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicant and learned AGA for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed against the order dated 10.3.2021 passed by Addl. Principal Judge, Family Court No. 4, Jaunpur in Criminal Case No. 21 of 2021 (Rahul Saroj Vs. Sandhya and another), under Section 126 Cr.P.C., P.S. Maharajganj, District- Jaunpur, by which the applicant's application u/s 126 Cr.P.C. has been rejected.
The brief facts of the case given in the said application is that opposite party no. 2 has filed an application under Section 125 Cr.P.C. with the prayer that she is unable to maintain herself and her child and applicant be directed to pay maintenance allowance to her. The said application was ex-parte allowed by the Addl. Principal Judge, Family Court vide order dated 3.3.2020 and applicant was directed to pay a sum of Rs. 3000- per month to the opposite party no. 2 and Rs. 1000/- to her minor child- opposite party no. 3. Further due to non compliance of the said order dated 3.3.2020 opposite party no. 2 moved an application u/s 128 Cr.P.C., in which registered notices were sent at the correct address of the applicant. The copy of the order dated 3.3.2020 was also sent to the applicant by registered post dated 19.3.2020.
It is further germane to point out here that applicant filed a Suit No. 323 of 2019 u/s 13 of the Hindu Marriage Act. The said suit was clubbed with the case u/s 125 Cr.P.C. and 13.2.2020 was fixed for hearing in both the cases, however applicant even did not appear on the said date, as such Suit No. 323 of 2019 filed by him was dismissed and the case u/s 125 Cr.P.C. was directed to be proceeded exparte. In the backdrop of the said circumstance, it is evident that the applicant was having knowledge of both the proceedings yet did not appear to contest the proceedings, as such the application u/s 126(2) Cr.P.C. was rejected.
Learned counsel for the applicant could not point out any illegality in the order and has only prayed that the said order dated 3.3.2020 be set aside and the case be restored to its original number.
Per contra, learned AGA has opposed the prayer and has drawn the attention of the Court to the proviso of Section 126(2) Cr.P.C, which is as under :-
"Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as the Magistrate may think just and proper."
Therefore in view of the specific provision contained in the proviso of Section 126(2) Cr.P.C., the applicant has not been able to show any good cause within three months to set aside the said order and has deliberately avoided the proceedings, as such there is no illegality, impropriety or apparent error in the said order.
Having considered the rival submissions made by the learned counsel for the parties and taking into consideration the proviso of Section 126(2) Cr.P.C. which clearly provides that any, ex-parte order, so made be set aside only for good cause shown on an application, however in the present case, it is evident that the applicant is deliberately avoiding the Court so as to escape his liability as such the impugned order is just, proper and legal and do not call for any interference by this Court at this stage.
The present application u/s 482 Cr.P.C. is devoid of merit and is accordingly, dismissed.
Order Date :- 16.8.2021 KU