Umesh Kumar Pandey vs Prin. Judge Family Court Faizabad ...
2023 Latest Caselaw 7 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 16
 

 
Case :- CRIMINAL REVISION DEFECTIVE No. - 491 of 2015
 

 
Revisionist :- Umesh Kumar Pandey
 
Opposite Party :- Prin. Judge Family Court Faizabad And Ors.
 
Counsel for Revisionist :- Brijesh Kumar Tiwari,Anay Misra
 
Counsel for Opposite Party :- Govt. Advocate,Rajesh Pandey
 

 
Hon'ble Mohd. Aslam,J.

Heard Sri Brijesh Kumar Tiwari, learned counsel for the revisionist, Sri Manish Kumar Pandey, learned A.G.A. for the State and perused the record.

Perused the report of Chief Judicial Magistrate, Faizabad dated 23.12.2022, which states that the revisionist has surrendered before the court and has been released on bail on furnishing personal bond of Rs.25,000/- and two sureties each of a like amount.

None present on behalf of opposite party nos.2 & 3 in spite of service of notice.

The instant revision has been preferred against the impugned judgement and order dated 9.9.2011 passed in Criminal Case No.52 of 2009, under Section 125 of Cr.P.C. and the impugned order dated 26.2.2014 passed in Criminal Case No.144 of 2013, under Section 126(2) of Cr.P.C. by the Principal Judge, Family Court, Faizabad.

The brief facts necessary for disposal of this revision is that opposite party nos.2 & 3 have filed Criminal Case No.52 of 2009, under Section 125 Cr.P.C. seeking maintenance from the revisionist on the ground that the marriage of opposite party no.2 was solemnized with revisionist on 14.5.2004 and out of the said wedlock, opposite party no.3 Km. Anushka was born out. The father of opposite party no.2 has given dowry according to his capacity. The revisionist is irresponsible person and is not taking care of the opposite party nos.2 and 3. The opposite party no.2 has no means to maintain herself or her daughter. She is dependent on her parents. The revisionist is agent in insurance company and he is earning Rs.10,000/- per month, apart from it, he owned 30 bighas of agricultural land from which he earns Rs.10,000/- per month. The revisionist has refused to keep opposite party nos.2 & 3 and neglected to maintain them. She claimed Rs.1500/- per month for herself and Rs.1000/- for her daughter. The revisionist has appeared before the court below and filed objection paper no.13(Ba) and thereafter he has not appeared due to which case was proceeded against ex-parte. The opposite party no.2 has got examined herself as PW-1.

After hearing learned counsel for the parties, learned lower court has held that the opposite party no.2 has proved that she is wife of the revisionist and he has acted upon opposite party no.2 and her daughter with cruelty. At present the opposite party no.2 is residing along with her child in her parents house and she has no means to maintain herself and her daughter as well. The revisionist is financially capable of maintaining them as he is doing the job of agent in insurance company from where he earns Rs.10,000/- per month. Apart from that he owned 30 bighas of agricultural land from where he also earns Rs.10,000/- per month. It has also held that the opposite party nos.2 & 3 are unable to maintain themselves and keeping in view the facts and circumstances of the case, the petition was partly allowed and maintenance of Rs.1000/- was awarded to the opposite party no.2 till her life or her remarriage and Rs.500/- was awarded to the opposite party no.3 vide judgment dated 9.9.2011. After passing of that order, the revisionist has moved an application under Section 126(2) Cr.P.C. for setting aside ex-parte order dated 9.9.2011. He has also filed the order sheet dated 26.2.2014, which states that no application for exemption of personal appearance was moved and the petition under Section 126(2) Cr.P.C. was dismissed. Feeling aggrieved by it, the revisionist has preferred this revision.

None present on behalf of the opposite party nos.2 & 3 in spite of service of notice.

It is submitted by learned counsel for the revisionist that the opposite party no.2 is living separately from the revisionist without any just and reasonable cause. He has further submitted that the opposite party no.2 was quarreling with revisionist and left his house and had gone with her father along with the infant child. The revisionist has made several efforts to patch up the differences so that he can bring back to the opposite party no.2, but she refused to live with him. It is further submitted that on 20.4.2009, the opposite party no.2 has filed a complaint under Section 12 of the Domestic Violence Act alleging therein various atrocities committed by the revisionist. She has also filed an application under Section 125 Cr.P.C. on 6.4.2009 in the court of Principal Judge, Family Court, Faizabad seeking maintenance of Rs.1500/- per month for herself and Rs.1000/- per month for her child, which was decided ex-parte on 9.9.2011 directing the revisionist to make payment Rs.1000/- per month to opposite party no.2 and Rs.500/- to the opposite party no.3. It is further submitted that the learned lower court has partly allowed the application without affording opportunity of hearing to the revisionist and adducing the evidence on record. It is further submitted that the opposite party no.2 has failed to prove the income of the revisionist. It is further submitted that there is no evidence on record to determine the income of the revisionist and no finding in that regard has been recorded by the learned lower court. It is further submitted that the court below has passed the impugned order dated 9.9.2011 without recording any finding regarding the income of the revisionist, which is based on surmises and conjectures. It is further submitted that the revisionist has preferred an application under Section 126(2) Cr.P.C. for setting aside ex-parte order dated 9.9.2011, but the same was dismissed on 26.2.2014 in absence of the revisionist. It is further submitted that the revisionist has moved an application for exemption of personal appearance on 26.2.2014, but in spite of it, the application under Section 126(2) Cr.P.C. was illegally dismissed. It is further submitted that the opposite party no.2 has left the company of the revisionist without just and reasonable cause. It is further submitted that the revisionist has been suffering from Acute Obsessive Compulsive Disorder since 2008 for which his treatment is going on since 2010. It is further submitted that the revisionist has no source of income and he has been making both ends and meet only by help from near friends and relatives. It is further submitted that the impugned order dated 9.9.2011 and order dated 26.2.2014 were illegally passed, which are bad in the eyes of law and are liable to be set aside.

Learned A.G.A. has supported the order of the trial court and has submitted that the opposite party no.2 has proved her case as well as income of the revisionist. It is further submitted that after filing objection in proceeding under section 125 Cr.P.C. the revisionist got himself absented, which was proceeded against ex-parte and the same was partly allowed vide order dated 9.9.2011 and the maintenance of Rs.1000/- per month to opposite party no.2 and Rs.500/- to opposite party no.3 was awarded. It is further submitted that the revisionist has not filed any order sheet on which he moved application under Section 126(2) of Cr.P.C. It is further submitted that the revisionist has filed only order sheet dated 26.2.2014, which reveals that on that date he was absent and has not moved any application for exemption of his personal appearance and the petition under Section 126(2) Cr.P.C. was dismissed in his default, which was according to law. It is further submitted that the revisionist has filed certificate of doctor which reflects that he was suffering from obsessive disorder in which he is being treated since 2008, but no prescription treatment was filed between 2nd June, 2008 to 23rd August, 2014.

I have given thoughtful consideration to the rival contentions raised by learned counsel for the parties. In proceeding under Section 125 Cr.P.C. the wife has only to allege the income of the revisionist by guess work and the income of her husband by guess work and how much revisionist is earning is within her special knowledge and burden under these circumstances to prove the income lies on husband in view of Section 106 of the Evidence Act. Moreover, the opposite party no.2 in her statement as PW-1 has deposed that the revisionist is working as agent in insurance company and also owned 30 bighas of agricultural land and no affidavit has been filed along with the revision to rebut the above fact. In these circumstances, it will be deemed that these facts are admitted to the revisionist. The opposite party no.2 in her statement has also deposed that the revisionist is treating her and her daughter with cruelty, which was also not challenged by the revisionist. Moreover, the ex-parte order was passed in 2009, but the revisionist has moved recall application under Section 126(2) Cr.P.C. in 2013. No explanation of delay in filing of the application under Section 126(2) Cr.P.C. was given. Section 126 Cr.P.C. reads as follows:-

"126. (1) Proceedings under Section 125 may be taken against any person in any district-

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully 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.

(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just."

From the proviso attached to sub-section 2 of Section 126 Cr.P.C. provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made willfully avoiding the service, or willfully neglecting the court of 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.

From perusal of the above provision, it is abundantly clear that application under Section 126(2) Cr.P.C. may be moved within three months because the revisionist took appearance in the proceeding under Section 125 Cr.P.C., therefore, limitation in revision will start from the date of ex-parte order dated 9.9.2011. The revisionist has not moved any application for condonation of delay in filing the revision, therefore, the application under Section 126(2) Cr.P.C. is time barred and the ground shown in the application is not sufficient. Learned court below by appreciating in detail has held that the revisionist has treated the opposite party nos.2 & 3 with cruelty and failed to maintain her and she is living separately with just and reasonable cause. She has also given the guess income of her husband as that her husband earns Rs.10,000/- as agent in insurance company and Rs.10,000/- from his agricultural land as he owned 30 bighas of agricultural land.

Keeping in view the facts and circumstances of the case, I find no merit in the revision. Accordingly, the revision is dismissed and the aforesaid impugned order passed by learned court below is hereby affirmed.

Order Date :- 2.1.2023

Anil K. Sharma