Prakash S/O Sukhlal Wankhede vs Mrs. Priyanka W/O Prakash ...
2017 Latest Caselaw 3620 Bom

Judgment

                                                                           revn60.16 25

                                          1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

 CRIMINAL REVISION APPLICATION (REVN) NO.60 of 2016

Mr. Prakash s/o Sukhlal Wankhede
Aged about - 33 years, Occupation - Nil
R/o Madhuban, B Wing 001, Lodha
Heaven, Nilje Gaon, Dombivali East,
Thane - 421 201.                                                ..... Applicant.

                                 ::   VERSUS   ::

1. Mrs. Priyanka w/o Prakash
Wankhede, Aged about - 26 years,
Occupation Private Job.

2. Master Safalya s/o Prakash Wankhede
through applicant No.1
Aged about - 05 ½ years, Occupation -
Education, Both R/o C/o Plot No.370,
Kapil Nagar, Nari Road, Post -
Uppalwadi, P.S. Jaripatka Nagpur-26.  ..... Non-applicants.

================================================================
          Shri P.H. Khobragade, Counsel for the applicant.
          None appears for the non-applicants.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE     : JUNE 27, 2017.




                                                                                 .....2/-





 Judgment

                                                                  revn60.16 25



ORAL JUDGMENT

1.              Rule.     Rule   is  made  returnable  forthwith.  Heard

finally by consent of learned counsel Shri P.H. Khobragade

for the applicant/husband. None appears for the non-

applicants.

2. The non-applicants filed the proceedings before

learned Judge of the Family Court at Nagpur. The

proceedings were in the nature of an application under

Section 125 of the Code of Criminal Procedure. Those

proceedings were registered as Petition No.E-168 of 2014.

Learned Judge of the Family Court on 30.12.2015 partly

allowed the said petition and thereby directed that the

present applicant/husband shall pay Rs.5,000/- per month by

way of maintenance to non-applicant No.1/wife and Rs.3,000/-

per month to non-applicant No.2/Master Safalya, his son.

3. According to learned counsel Shri P.H.

.....3/-

Judgment

revn60.16 25

Khobragade for the applicant/husband, the case before

learned Judge of the Family Court was decided behind the

back of the present applicant/husband and it was not decided

on merits. Therefore, the applicant/husband should get a

chance to submit his case before learned Judge of the Family

Court.

4. Submission made on behalf of learned counsel

Shri P.H. Khobragade for the applicant/husband, after

perusing the judgment, is not correct in toto. The notice of

the petition was duly served upon the present

applicant/husband. In pursuance to the said notice, the

applicant/husband appeared before learned Judge of the

Family Court and filed his written statement Exhibit 40 and

contested the proceedings. However, it appears from the

judgment that after the evidence of non-applicant No.1/wife

was recorded, the present applicant/husband remained

.....4/-

Judgment

revn60.16 25

absent and his Advocate filed a No-Instruction-Pursis and,

therefore, the matter was decided ex parte from the said

stage.

5. On 12.4.2016, this Court directed the present

applicant/husband to deposit Rs.25,000/-. The said amount of

Rs.25,000/- was deposited by the present applicant/husband on

2.5.2016. On 5.4.2017, this Court recorded a statement of

learned counsel for the applicant/husband that the

applicant/husband is making regular payment of Rs.5,000/- to

non-applicant No.1/wife and Rs.3,000/- to non-applicant

No.2/son.

Record shows that though the non-applicants

were served and counsel was also appointed, nobody

appeared before this Court. Therefore, on 13.6.2017 an order

was passed granting time till today and by the said order it

was made clear that if the non-applicants and their counsel

.....5/-

Judgment

revn60.16 25

remain absent, the matter will be heard finally even in their

absence.

6. In view of the conduct on the part of the

applicant/husband of depositing amount of Rs.25,000/- as

directed by this Court and also paying maintenance amount

as directed by learned Judge of the Court regularly, I am of

the view that opportunity should be given to the

applicant/husband to defend his case on merits before learned

Judge of the Family Court. No prejudice will be caused to the

non-applicants since the applicant/husband is continuously

paying the maintenance amount.

7. In that view of the matter, the present criminal

revision application is allowed. Judgment and order passed

by learned Judge of the Family Court, Nagpur dated

30.12.2015 in Petition No.E-168 of 2014 is hereby quashed and

set aside. The matter is remanded back to the Family Court

.....6/-

Judgment

revn60.16 25

at Nagpur to decide the matter afresh on its own merits.

However, it is made clear that till the matter is decided by

learned Judge of the Family Court afresh, the

applicant/husband shall be under an obligation to make

payment of Rs.5,000/- to non-applicant No.1/wife and Rs.3,000/-

to non-applicant No.2/son.

Rule is made absolute. There shall be no order as

to costs.

JUDGE

!! BRW !!

...../-