Vijay Kumar Laskar v. Smt. Saroj Kumari
-1NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL REVISION NO.
• Vijay Kumar Laskar S/o Laxmi Prasad Laskar Aged About 25 Years R/o Ratanpur, Dulharapara, Behind Khandawa Mandir, Ratanpur, District Bilaspur, Chhattisgarh.
---- Applicant
Versus
• Smt. Saroj Kumari W/o Shri Vijay Kumar Laskar, Aged About 22 Years R/o Village Ratanpur, Dulharpara, Behind Khandwa Mandir, Ratanpur, District Bilaspur, Chhattisgarh, At Present Village Dhavaipur, Mohalla Ramnagar, Tahsil Katghora, District Korba, Chhattisgarh. ... Non-applicant For Applicant :
Mr. N.K. Chatterjee, Advocate.
Hon'ble Shri Justice P. Sam Koshy Order on Board 13/02/2017
1. Heard on I.A. No.1/2017, which is an application for condonation of delay.
2. For the reasons assigned in the said application for condonation of delay and the same found to be satisfactory, I.A No. 1 is allowed. The Delay of 4 days in filing the Revision stands condoned.
3. The present Criminal Revision under Section 19(4) of the Family Courts Act, 1984, has been preferred by the Applicant against the order dated 10.08.2016 passed by Judge, Family court, Camp Court Katghora, in M.J.C. Case No. 356/2015.
4. Vide impugned order dated 10.08.2016, the Court below in a proceeding under Section 125 of CrPC has allowed the application and ordered the present Applicant to pay an amount of Rs.1500/- to Nonapplicant wife as maintenance every month.
5. Before entering into the merits of the case, it is reflected from the ordersheets as well as from the proceedings that the Applicant has been
-2proceeded ex parte before the Court below and the impugned order is an ex parte order.
6. Counsel for the Applicant intends to challenge the impugned order on merits but the fact that he has been proceeded ex parte his defence could not be brought on record and therefore this Court would find it difficult to take cognizance of those documents which were not produced for evidence before the Court below. Since the impugned order is an ex parte order, the Applicant had a remedy under the provisions of CrPC for moving the same Court under Section 126(2) of CrPC, proviso of which specifically holds that: "126. Procedure.- xxx xxx xxx 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 as to payment of costs to the opposite party as the Magistrate may think just and proper."
7. From the facts of the case, it appears that the Applicant has not tried to avail the said remedy but has straightaway rushed to this Court by preferring the present criminal revision against the impugned order. This Court thus is reluctant to entertain the present criminal revision.
8. Meanwhile, Counsel for the Applicant, on a query being put to him as to whether the order dated 10.08.2016 has been complied with or not, makes a statement that the Applicant is making the payment to the Non-applicant.
9. At this juncture, without entering into the merits of the case, this Court is of the opinion that ends of justice would meet, if subject to the Applicant continuing to make the entire amount of monthly maintenance awarded by the Court below treating the said amount to be an interim
-3maintenance, files an application under Section 126(2) of CrPC before the Court below explaining the reasons of his non-appearance before the Court below seeking setting aside of the ex parte order and if the same is found suitable and satisfactory, the Court below shall entertain the same and shall proceed further with the matter and decide the claim of the Applicant afresh taking into consideration the fresh evidence which would be brought on record.
10. Needless to mention that the Non-applicant would also have a liberty to adduce any fresh evidence, if she so desire.
11. Meanwhile, as ordered earlier, pending the application before the Court below, the present Applicant shall continue to pay the maintenance as awarded by the Court below as an interim maintenance till the case is finally decided.
12.
With the aforesaid observations, the impugned order stands quashed for the limited purpose, subject to compliance of the conditions enumerated herein above.
13. In view above, the present Criminal Revision is allowed and disposed of.
Sd/- (P. Sam Koshy) kishore Judge