Court No. - 49
Case :- CRIMINAL REVISION No. - 952 of 2018 Revisionist :- Sunil Kumar Awasthi Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Ved Mani Sharma,Shesh Mani Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present revision has been filed against the order dated 3.1.2018 passed by the learned Principal Judge, Family Court, Kanpur Nagar in Misc. Case No. 143 of 2017, by which the applicant's application filed under Section 126(2) Cr.P.C. has been rejected.
In the above regard, by order dated 6.12.2016 the learned Principal Judge, Family Court, Kanpur Nagar had allowed the application filed by the opposite party no.2 for monthly maintenance allowance by an exparte order directing the the applicant to pay maintenance allowance @ of Rs. 5,000/- per month from the date of that order.
The aforesaid order came to be passed after service was deemed sufficient on the applicant and he did not appear in the proceedings.
The applicant claims that he had no knowledge of the aforesaid proceedings and his first gained knowledge of the exparte order in proceeding pending in Case No. 2049 of 2016 under Section 9 of the Hindu Marriage Act pending in the Court of Principal Judge, Family Court, Kanpur Nagar.
It is then claimed that having gained came knowledge of the exparte order dated 6.12.2016, the applicant filed application under section 126(2) Cr.P.C. to recall the said order.
By the impugned order, the aforesaid application has been rejected by learned Court below, on the reasoning that the notice in the present proceeding had been served on the applicant personally on 18.5.2015 and he had affixed his signature on the said notice both in English as also Hindi.
Learned counsel for the applicant submits that the very fact of the signature are both in English and in Hindi itself indicates that the notice was actually not served on the applicant. Those signatures have been affixed or made by some other person. In any case, it has been submitted that the applicant only prays for one last opportunity to be heard in the proceeding. He has also relied on the fact that the proceeding on restitution of conjugal rights are also pending.
Further it has been shown that the applicant had required to deposit Rs. 10,000/- at the time of filing of the application under Section 126(2) Cr.P.C. which he had deposited by the demand draft on 15.4.2017. It has been stated that the applicant does not have any stable employment in that he is only working as a daily labourer who does not get engagement of 30 days. Therefore he is not in a position to provide for such high maintenance allowance, as awarded.
Having considered the argument so advanced by learned counsel for the applicant and learned A.G.A., I do not find any useful purpose would be served in issuing notice to the opposite party in view of the order proposed to be passed.
As on date the total amount of outstanding dues in view of the exparte order dated 6.12.2016 would be Rs. 80,000/-
(i) The applicant shall furnish security in the shape of other than cash or bank guarantee Rs. 40,000/-. He shall further furnish security in the shape of cash deposit of Rs. 40,000/- on or before 30.4.2018. The amount so deposited shall be released in favour of the opposite party no.2.
(ii) Subject to the aforesaid deposit being made, the exparte order dated 6.12.2016 stands recalled and the learned Court below shall decide the application afresh.
(iii) During the pendency of the application, the applicant shall continue to pay maintenance allowance @ Rs. 3,000/- per month to the opposite party no.2 from the month of April, 2018 on or before 10th of each month.
Considering the fact that the application filed by the opposite party no.2 under Section 125 Cr.P.C. sufficiently old, learned counsel below shall proceed to decide the matter, as expeditiously as possible without allowing any undue or long adjournment to either of the parties. In this regard, the applicant undertakes the qua operate in the proceeding.
The final amount of maintenance allowance, if any, shall be such as the learned Court may determine in light of the entirety of facts and circumstances of the case, without being influenced by any observation made in this order.
It is left open to the opposite party no.2 to seek recall of the order in the event of her being aggrieved.
The present application is disposed of. Order Date :- 28.3.2018 Mini