Mohd. Tariq vs State Of U.P. And Another
2015 Latest Caselaw 2756 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 28
 
Case :- CRIMINAL REVISION No. - 36 of 2015
 
Revisionist :- Mohd. Tariq
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Amit Daga
 
Counsel for Opposite Party :- Govt.Advocate,Vikrant Pandey
 

 
Hon'ble Harsh Kumar,J.

Rejoinder affidavit filed by learned counsel for the revisionist today in the Court is taken on record.

Heard learned counsel for revisionist, learned counsel for opposite party no.2 as well as learned AGA and perused the record.

The revision has been filed against the order dated 18.12.2014 passed by Principle Judge, Family Court, Saharanpur in Misc. Case No.547 of 2013, Mohd. Tariq Vs. Km. Farheen @ Areeba by which the application of revisionist under section 126 (2) Cr.P.C. for setting aside the ex parte order of maintenance dated 13.5.2008 was rejected.

The brief facts which are not disputed between the parties relating to the case are that Smt. Alia was married to the revisionist Mohd. Tariq on 25.12.2002 and out of wedlock a daughter Km. Farheen, the opposite party no.2 born on 6.12.2003. On 1.4.2006, Smt. Alia along with her minor daughter Km. Farheen moved an application under section 125 Cr.P.C., Criminal Case No.251 of 2006 seeking maintenance at the rate of Rs.5000/- per month for herself and Rs.6000/- per month for her minor daughter total Rs.11,000/- per month. Undisputedly after service of notice on the revisionist, opposite party in above maintenance case, did not appear and case was ordered to proceed ex parte against him. Thereafter, the revisionist put in appearance and moved application for recall of ex parte order, which was allowed subject to payment of costs, but neither the cost was paid nor the revisionist appeared before the Court and the case was again ordered to proceed ex parte against him vide order dated 15.11.2007. It is also not disputed that in the meantime on 24.5.2007, the revisionist entered into compromise with Smt. Alia and by mutual consent both of them dissolved the marriage between them, by way of Talaq and a sum of Rs.1,00,000/- was paid by the revisionist to Smt. Alia towards mehar and maintenance. In furtherance of ex parte order dated 15.11.2007, the maintenance petition was proceeded ex parte in absence of the revisionist and considering the arguments advanced on behalf of petitioner of maintenance case that  marriage has been dissolved by way of Talaq on 24.5.2007 and Smt. Alia has received a sum of Rs.1,00,000/- towards the mehar and her maintenance for iddat period, and she is not claiming maintenance for herself as well as considering the allegations about the two houses owned by revisionist fetching a monthly rental  of Rs.2000/- apart from a newspaper agency and work of property dealer and service of revisionist at  Singhret Agency at salary of Rs.5000/- per month, the maintenance of Rs.1500/- per month was awarded to Km. Farheen, opposite party no.2 from the date of order i.e w.e.f. 13.5.2008. Thereafter vide order dated 10.6.2008, the revisionist moved an application under section 126 (2) Cr.P.C. for recall of ex parte order of maintenance dated 13.5.2008 which was dismissed by impugned order giving rise to this revision.

Learned counsel for the revisionist contended that the impugned order is wrong on facts and law; that the Principle Judge, Family Court has acted wrongly and incorrectly in rejecting the recall application on the ground that the allegations of compromise between the parties and payment of Rs. 1,00,000/- towards maintenance amount of wife as well as minor daughter are not supported by any documentary evidence and oral allegations may not be accepted; that the learned Principle Judge, Family Court has acted wrongly in holding that in case  the amount of Rs.1,00,000/- was paid towards lump sum payment of maintenance amount for wife as well as minor daughter both then the same ought to have been reduced into writing and revisionist would have got the case decided on such ground and  would not have absconded from trial. Learned counsel for revisionist also contended that Smt. Alia, the mother as well as guardian of opposite party no.2 has made re-marriage and the revisionist has also moved an application seeking custody of  opposite party no.2.

Per contra, learned counsel for opposite party no.2 contended that the revisionist has undisputedly divorced Smt. Alia, the mother of opposite party no.2 and made payment of Rs.1,00,000/- towards payment of mehar as well as lump sum payment of maintenance allowance of Smt. Alia; that it is wrong to say that payment of Rs.1,00,000/- was made towards the full and final payment of mehar as well as lump sum payment of maintenance allowance of Smt. Alia as well as her minor daughter opposite party no.2; that the revisionist has always avoided  and delayed the hearing in the case and has not come to Court with clean hands; that the opposite party no.2 is growing child aged about 11-12 years and heavy amount is required for meeting the expenses for her livelihood as well as her education; that there is no illegality, irregularity or incorrectness in the impugned order rejecting application under section 126 (2) Cr.P.C.; that the Principle Judge, Family Court has very correctly held that even in case of compromise between the husband and wife, the parties may not be permitted to ascertain the amount of maintenance of the minor child as well as its payment without permission of court.

Upon hearing learned counsel for parties and perusal of record, I find that undisputedly, the application under section 126 (2) Cr.P.C. has moved within a period of one month from the date of ex parte order of maintenance and it is also not disputed that the revisionist has divorced his wife Smt. Alia pending maintenance petition on 24.5.2007. It is also not disputed that the sum of Rs.1,00,000/- was paid by the revisionist to Smt. Alia and there is no compromise deed between the parties in writing. The main point for dispute between the parties is as to whether the sum Rs.1,00,000/- was paid towards the mehar and lump sum payment of maintenance of Smt. Alia, in view of marriage having taken place for a consideration of mehar of Rs.51000/-, or above amount was paid towards full and final settlement of maintenance allowance of Smt. Alia as well as her daughter Km. Farheen, the opposite party no.2 also. In absence of any written deed of compromise, the above fact may not be decided without evidence by two parties. Undisputedly, the Principal Judge, Family court has taken a period of about  6 ½ years in disposal of application under section 126 (2) Cr.P.C., but no opportunity of leading evidence was afforded to parties. It is settled principle of law that the courts must not take technical or hyper technical view in such matters and in the interest of justice opportunity of hearing must be afforded to the parties until and unless it is proved that he or she has acted deliberately with mala fide intention.

In the case of Ramji Das and others Vs. Mohan Singh 1978 ARC 496 Supreme Court, where High had set aside an order allowing application under Order IX Rule 13 CPC. Hon'ble the Apex Court setting aside order of High Court holding it to be not in the interest of justice held that courts discretion should be exercised in favour of hearing and not to shut out hearing.

It is not disputed that the opposite party no.2 is growing child and is alleged to be studying in Class Vth or so at present. The expenditure of her education and livelihood are required to be met out by her mother and guardian Smt. Alia under whose custody she is living and so it would be appropriate in the interest of justice to impose certain conditions if the application under section 126 (2) Cr.P.C. is allowed.

In view of the discussions made above and considering the totality and facts and circumstances of the case, I find that the Principle Judge, Family Court has acted wrongly in rejecting the application under section 126 (2) Cr.P.C. of revisionist and closed the doors for him. If the impugned order rejecting application under section 126(2) Cr.P.C. is allowed to stand, it may cause miscarriage of justice and irreparable injury to the revisionist and by allowing his application and giving him a reasonable opportunity of hearing, the opposite party no.2 may be compensated by imposing some costs and conditions making provisions for safeguarding the interests of growing minor girl.

The revision is allowed. Impugned order dated 18.12.2014 rejecting application under section 126 (2) Cr.P.C. passed by Principal Judge, Family Court, Saharanpur is set aside. The application under section 126 (2) Cr.P.C. is allowed and the ex parte order dated 13.5.2008 passed by Judicial Magistrate-II, Saharanpur in Misc. Case No.251 of 2006 stands set aside subject to (i) payment of Rs.5000/- by the revisionist to the opposite party no.2 within 15 days from today, (ii) deposit of a lump sum amount of Rs.25000/- in favour of opposite party no.2 within one month from today and (iii) payment of arrears of maintenance w.e.f. 18.12.2014 till 30.9.2015 @ Rs.1500/- per month within the same period. In addition to above the revisionist will continue to make payment of Rs.1500/- per month regularly, towards interim maintenance to petitioner till 7th of next month till disposal of maintenance petition.

The Principal Judge, Family Court, Saharanpur is directed to dispose of the maintenance petition afresh after affording reasonable opportunity of evidence and hearing to the parties expeditiously and if possible within three months from the date of production of order before him.

It is further made clear that any observation made in the judgment will not be binding on Principle Judge, Family Court, Saharanpur at the time of disposal of application on merits. The deposit of Rs.25000/- as directed above shall be paid to opposite party no.2 Km. Farheen and payment shall abide by the final order passed by the Family Court.

Order Date :- 29.9.2015

Tamang