THE HON'BLE SMT JUSTICE JUVVADI SRIDEVI
CRIMINAL REVISION CASE No.2573 and 2570 of 2018
COMMON ORDER
Since the facts of the case issue involved are one of the
same in both these Criminal Revision cases, both these Criminal
revision Cases are being taken up together and are being disposed
by way of common order.
Crl.R.C.No.2570 of 2018 is filed by the
petitioner/husband, challenging the order dated 06.07.2018
passed in M.C.No.112 of 2014 by the XVI Additional District and
Sessions Judge's Court-cum-XVI Additional Metropolitan Sessions
Judge's Court-cum-III Additional Family Court, Rangareddy District
at Malkajgiri whereby, the application filed under Section 125 of
Cr.P.C by the respondent No.2 and 3 herein/wife and minor
daughter for grant of maintenance @ Rs.70,000/- per month, apart from Rs.20,000/- towards legal expenses, was allowed awarding an amount of Rs.30,000/- and Rs.20,000/- to the respondent No.1 and 2 herein respectively towards monthly maintenance, apart from other directions.
The Criminal Revision Case No.2573 of 2018 is filed by the petitioner/husband, challenging the order dated 06.07.2018 passed in Crl.M.P.No.60 of 2018 in M.C.No.112 of 2014 by the XVI 2 Justice Juvvadi Sridevi CRl.R.C.Nos.2570 and 2573 of 2018 Additional District and Sessions Judge's Court-cum-XVI Additional Metropolitan Sessions Judge's Court-cum-III Additional Family Court, Rangareddy District at Malkajgiri whereby, the subject Crl.M.P.No.60 of 2018 filed by the petitioner/husband under Section 126(2) of Cr.P.C to set aside the ex parte order dated 27.02.2018 and to afford him an opportunity to contest the matter, was dismissed.
2. I have heard submissions of Sri I.V. Radhakrishna Murthy, learned counsel for the petitioner/husband in both these Criminal Revision Cases, Ms. Apporva Gokhale representing learned counsel for the respondent Nos.2 and 3 in Crl.R.C.No.2570 of 2018 and respondent No.2 in Crl.R.C.No.2573 of 2018 and perused the record.
3. Learned counsel for the petitioner/husband in both these criminal Revision cases would submit that the Court below ought to have afforded an opportunity to the petitioner/husband to put-forth his case before passing the impugned orders. The Court below has given a go bye to the said principle and awarded maintenance in favor of the wife and minor daughter which is wholly illegal, arbitrary and contrary to law. There is no procedure either in civil or criminal law that the Court has power to set any person ex-parte. The Court below has misunderstood the said 3 Justice Juvvadi Sridevi CRl.R.C.Nos.2570 and 2573 of 2018 principle. The Court has power to proceed ex-parte, but does not have power to set any person ex-parte, as held by the Hon'ble Apex Court in Sangram Singh V/s Election Tribunal, kotah1. The Court below ought to have passed a conditional order before passing the orders in favour of the wife and minor daughter. The petitioner/husband never deserted his wife and minor daughter. By passing the impugned order, the petitioner/father was deprived of his legal right to contest the subject cases and putforth his evidence and bring the real facts to the notice of the Court below. Though no case for grant of maintenance is made out against the petitioner/accused, the Court below granted exorbitant amount towards maintenance, apart from other directions, which is erroneous and ultimately prayed to allow both the Criminal Revision Cases as prayed for.
4. On the other hand, the learned counsel for the respondent Nos.2 and 3 in Crl.RC.No.2570 of 2018 and respondent No.2 is Crl.RC.No.2573 of 2018 would submit that though a reasonable opportunity was provided to the petitioner/father to putforth his case, he did not come forward to do so and hence he was set ex parte by the Court below. Further, the Court below, after adverting to the facts and circumstances of the case in great (1 AIR 1955 SC 425) 4 Justice Juvvadi Sridevi CRl.R.C.Nos.2570 and 2573 of 2018 detail and after considering the oral and documentary evidence of record, rightly granted maintenance to the wife and minor daughter apart from other directions. It is the obligation and bounden duty of every father is to maintain his wife and children. The order under challenge does not warrant any interference by this Court in exercise of Revisional jurisdiction under Section 397 and 401 of Cr.P.C and ultimately prayed to confirm the orders under challenge and dismiss the Criminal Revision Case.
5. In view of the above rival contentions, the point that arises for determination in both these Criminal Revision Cases are as follows:
"Whether the order of the even date.06.07.2018 passed in Crl.M.P.No.60 of 2018 in M.C.No.112 of 2014 (impugned in Crl.Rc.No.2573 of 2018) and M.C.No.112 of 2014 (impugned in Crl.Rc.No.2507 of 2018) by the XVI Additional District and Sessions Judge's Court-cum-XVI Additional Metropolitan Sessions Judge's Court-cum-III Additional Family Court, Rangareddy District at Malkajgiri , are legally sustainable?"
POINT:
6. The material placed on record reveals that the petitioner in both these Criminal Revision Cases is the husband and the father of respondent Nos.2 and 3 respectively in Criminal Revision Case No.2570 of 2018. The wife and her minor daughter filed the subject M.C.No.112 of 2014 against the 5 Justice Juvvadi Sridevi CRl.R.C.Nos.2570 and 2573 of 2018 petitioner/husband seeking maintenance for both of them. However, the petitioner/husband was set exparte on 27.02.2018 in the subject Maintenance Case. Subsequently, the petitioner/husband filed the Crl.M.P.No.60 of 2018 in said maintenance case under Section 126(2) of Cr.P.C to set aside the ex-parte order dated 27.02.2018 and to give him an opportunity to contest the matter. However, the Court below vide judgment dated 06.07.2018, dismissed the subject application holding that there are no grounds to invoke Section 126 of Cr.P.C. On the same date, the Court below also disposed of the subject M.C.No.112 of 2014 granting maintenance of Rs.30,000/- to the wife and Rs.20,000/- to the minor daughter from 04.02.2017, apart from other directions.
7. While it is the case of the petitioner/husband that he was diligent and his absence on 27.02.2018 before the Court below was neither wilfull nor intentional, it is the case of the wife and minor daughter that in spite of affording reasonable opportunity, the petitioner/husband failed to pursue the matter diligently and hence, the subject ex-parte order came to be passed.
8. Be that as it is. Admittedly, the orders impugned in both these Criminal Revision Cases are ex-parte orders. In a 6 Justice Juvvadi Sridevi CRl.R.C.Nos.2570 and 2573 of 2018 catena of decisions, the Hon'ble Apex Court held that litigation should not be terminated by default, either of the petitioner or of the respondent and that adjudication of litigation has to be done on merits, as far as possible. In the instant case, there is record to show that the petitioner was set ex parte on 27.02.2018 and ex parte orders dated 06.07.2018 were passed. The matter arises from a maintenance case. It may be true that the wife and minor daughter have got a strong case in their favour, however, that it does not mean that the relief sought by them can be granted without affording an opportunity to the petitioner/father to put forth his defence. In my considered view, justice demands that an opportunity should be afforded to the petitioner/father to contest the case and putforth his defence. As noticed above, the cause of justice requires that as far as possible, adjudication of a matter should be done on merits. An obligation is cast on the Court to follow the cardinal principle of "audi alteram partem" and give an opportunity to the parties before making an order referring the dispute.
9. For the foregoing reasons, this Court deems it appropriate to set aside the order under challenge in both these Criminal Revision Cases and remit both the matters to the Court below for disposal of the subject M.C.No.112 of 2014 and also 7 Justice Juvvadi Sridevi CRl.R.C.Nos.2570 and 2573 of 2018 Crl.M.P.No.60 of 2018 in M.C.No.112 of 2014, afresh, after affording opportunity to both the parties, which course, in the considered opinion of this Court, would meet the ends of justice.
10. Accordingly, without expressing any opinions on the merits of the matter, the impugned orders of the even date 06.07.2018 passed in M.C.No.112 of 2014 (impugned in Crl.R.C.No.2570 of 2018) and Crl.M.P.No.60 of 2018 in M.C.No.112 of 2014 (impugned in Crl.R.C.No.2573 of 2018) by the XVI Additional District and Sessions Judge's Court-cum-XVI Additional Metropolitan Sessions Judge's Court-cum-III Additional Family Court, Rangareddy District are set aside. Consequently, M.C.No.112 of 2014 stands restored to the file of the Court below. The Court below is directed to dispose of the subject M.C.No.112 of 2014 afresh, after giving opportunity to both the parties. Since, the subject maintenance case is sufficiently old, the Court below shall dispose of the same, as expeditiously as possible, at any rate, not later than three (03) months from the receipt of a copy of this common order.
11. With the above observations/directions, both these Criminal Revision Cases are disposed of.
8 Justice Juvvadi Sridevi CRl.R.C.Nos.2570 and 2573 of 2018 Miscellaneous petitions, if any pending in these both Criminal Revision Cases shall stand closed.
_________________________
JUVVADI SRIDEVI, J
28.04.2023
dgr
9 Justice Juvvadi Sridevi
CRl.R.C.Nos.2570 and 2573 of 2018
10 Justice Juvvadi Sridevi
CRl.R.C.Nos.2570 and 2573 of 2018
THE HON'BLE SMT JUSTICE JUVVADI SRIDEVI
Crl.R.C. Nos. 2570 and 2573 of 2018
Date:28.04.2023
dgr