The Patna High Court, while allowing a petition filed against the judgment dated 06.07.2023 passed by the Principal Judge, whereby the learned Family Court allowed the application filed under Section 125 Cr. P.C. by the opposite party/wife and passed the ex parte order against the petitioner, held that before proceeding ex parte, the learned Magistrate is required to satisfy 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.
Brief Facts:
This revision petition has been preferred by the petitioner/husband being aggrieved with the judgment dated 06.07.2023 passed by the Principal Judge, Family Court in Maintenance Case, the learned Family Court allowed the application filed under Section 125 Cr. P.C. by the opposite party/wife and passed the ex parte order against the petitioner and directed him to pay a monthly maintenance amount of Rs. 10,000/- to the Opposite Party/wife.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that since the peremptory order was passed by the Family Court against the Petitioner and no date of hearing was provided by the Family Court to the Petitioner, the impugned order is liable to be set aside. He argued that the Family Court did not make any observation in the said order sheet that the petitioner wilfully neglected to attend the Court. Therefore, the impugned ex parte order is liable to be set aside.
Contentions of the Respondent:
The Learned Counsel for the Respondents submitted that, despite the knowledge of the pending maintenance case, the petitioner was wilfully not present before the Family Court. Therefore, the Family Court rightly passed the ex parte order.
Observations of the Court:
The Court noted that it had been mentioned by the Family Court in the impugned order that after completing the entire proceeding for securing the presence of the opposite party/husband, he did not present in the Court. Therefore, he was declared ex parte and ex parte order was passed on 07.06.2023. Neither any notice was issued by the Family Court nor was served upon the petitioner herein. There is also no document available on record that shows that any notice has been served to the petitioner through paper publication.
The Court observed that before proceeding ex parte, the learned Magistrate is required to satisfy 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 learned Family Court did not make any observation that the Court is satisfied that the petitioner herein wilfully neglected to attend the Court. Mere knowledge of the submission of the maintenance case is not sufficient, but information about the date fixed by the learned Trial Court to the petitioner is also required.
The decision of the Court:
The Patna High Court, allowing the petition, held that there is no material available on record to show that the petitioner had any knowledge of fixing the maintenance case on 07.06.2023.
Case Title: Avinash Kumar v The State of Bihar & Anr.
Coram: Hon’ble Justice Arvind Singh Chandel
Case No.: Criminal Revision No. 722 of 2023
Advocate for the Petitioner: Mr. Ujjwal Kumar
Advocate for the Respondents: Mr. Pranav Kumar
Read Judgment @LatestLaws.com
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