Allahabad High Court
Dharmendra Kumar vs Principal Judge Family Court, ... on 22 May, 2023
Bench: Ajai Kumar Srivastava-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:35755
Court No. - 15
Case :- CRIMINAL REVISION No. - 475 of 2023
Revisionist :- Dharmendra Kumar
Opposite Party :- Principal Judge Family Court, Barabanki And Another
Counsel for Revisionist :- Umesh Chandra Vishwakarma,Hukum Singh
Hon'ble Ajai Kumar Srivastava-I,J.
1. Heard Sri Umesh Chandra Vishwakarma, learned counsel for the revisionist and perused the record.
2. In view of the order proposed to be passed, notice to the opposite party no.2 is hereby dispensed with.
3. Challenge in this criminal revision has been made to the order dated 13.03.2023 passed by Principal Judge, Family Court, Barabanki in Case No.1920 of 2022, under Sections 126 (2) Cr.P.C., Police Station-Baddupur, District Barabanki, whereby the application bearing no.3A and 14B moved by the present revisionist has been allowed and the application moved under Section 126 (2) Cr.P.C. has been allowed by condoning delay which has been caused in filing a proceeding on payment of cost of Rs.20,000/- by the next date fixed.
4. It is submitted by learned counsel for the revisionist that the cost which has been imposed upon the present revisionist is excessive. Because of certain financial constraints, the present revisionist is unable to deposit the aforesaid amount. Therefore, he has prayed that the impugned order dated 13.03.2023 is liable to be set aside.
5. Having heard learned counsel for the applicant and upon perusal of the record, it transpires that the present revisionist moved an application seeking recall of ex-parte judgment and order dated 24.05.2022 passed in criminal Case No.898 of 2021 "Poonam Chauhan vs. Dharmendra Kumar @ Lavkush", under Section 125 Cr.P.C. It also transpires that the present revisionist moved an application seeking setting aside the aforesaid ex-parte judgment and order dated 24.05.2022 passed in criminal Case No.898 of 2021 "Poonam Chauhan vs. Dharmendra Kumar @ Lavkush", under Section 125 Cr.P.C. by allowing an application moved under Section 5 of Limitation Act and by condoning delay.
6. Being germane to the present controversy, Section 126 (2) Cr.P.C. is extracted herein below :
"All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proceed 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 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 at to payment of costs to the opposite party as the Magistrate may think just and proper."
7. Having regard to the provision contained in Section 126 (2) Cr.P.C., it appears that learned trial Court, after having considered the entire facts and circumstances of this case, was pleased to allow the application moved by the present revisionist under Section 126 (2) Cr.P.C. by giving him the benefit of Section 5 of Limitation Act also and by condoning delay inter alia on the condition that he shall have to deposit the amount of Rs.20,000/- as cost by the next date i.e. 15.04.2023.
8. The object behind incorporating Chapter IX in Cr.P.C. in form of Section 125 to 128 Cr.P.C. is to save the wife, children and parents from vagrancy. It is summary in nature and is expected to be disposed of as expeditiously as possible.
9. Therefore, in the aforesaid factual background, the conduct of the present revisionist in getting the proceeding proceeded ex-parte and to get the same set aside at his sweet will, cannot be appreciated.
10. The power vested with the learned trial Court under Section 126 (2) Cr.P.C. is discretionary in nature which cannot be substituted by this Court as the impugned order has come to be passed by the learned trial Court having regard to all relevant attending facts and circumstances of this case in its entirety.
11. Thus, having regard to aforesaid facts of this case, this Court does not find any illegality or infirmity with the impugned order dated 13.03.2023.
12. The instant criminal revision deserves to be dismissed and is accordingly dismissed.
Order Date :- 22.5.2023
Mahesh
