Sayyed Irfan Sayyed Burhan vs Suraiya W/O. Sayyed Irfan And ...
2023 Latest Caselaw 4119 Bom

                                  1           50-Cri.Rev.Appln.359-22+1-Oral Jud.odt




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

            CRIMINAL REVISION APPLICATION NO.359 OF 2022
                                WITH
                CRIMINAL APPLICATION NO.2856 OF 2022
                          IN REVN/359/2022

     Sayyed Irfan S/o Sayyed Burhan,
     Age 27 years, Occu. Labour,
     R/o Sindhi Kalegaon,
     Taluka and District Jalna.                       ... Applicant.

             Versus

     1.      Suraiya W/o Sayyed Irfan,
             Age 21 years, Occu. Housewife,
             R/o Sindhi Kalegaon,
             Taluka and District Jalna.

     2.      Aayan S/o Sayyed Irfan,
             Age 2 years, Occu. Nil,
             R/o Sindhi Kalegaon,
             Taluka and District Jalna.               ... Respondents.

                                    ...
      Advocate for Applicant-Petitioner : Ms. Salunke Sheetal Vilas.
       Advocate for Respondents : Mr. Usmanpurkar Aniruddha S.
                                    ...

                                CORAM :   S. G. MEHARE, J.
                                DATE :    24.04.2023

     ORAL JUDGMENT :-


     1.      Rule. Rule made returnable forthwith and heard finally

     by consent of the parties.




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                                  2          50-Cri.Rev.Appln.359-22+1-Oral Jud.odt




     2.      The applicant/husband has impugned the exparte

     judgment and order of the learned Judge, Family Court, Jalna,

     in Petition No.E-127 of 2021, dated 25.02.2022.


     3.      Learned counsel for the applicant would submit that the

     learned counsel, engaged for the applicant did not inform the

     next date to the applicant. He also did not advise him to file

     written statement. There was a communication gap between

     the lawyer and the applicant. Hence, the matter was proceeded

     exparte. The quantum of maintenance was determined barely

     on the basis of photographs of the shops and the load carrying

     vehicle. She would argue that the applicant is a labourer.

     Therefore, granting maintenance of Rs.7,000/- per month to

     both the respondents is high and disproportionate. She would

     argue that the applicant has a good case on merit and chances

     of success in the petition.     Therefore, the matter may be

     remitted back to the learned Judge, Family Court, Jalna by

     giving an opportunity to contest the petition on merit.


     4.      Per contra, learned counsel for the respondents would

     submit that the reasons assigned for his absence appear not

     genuine. He was well aware of the proceedings. He did not

     inquire with the counsel engaged by him. Therefore, he cannot

     blame the counsel. He has a sufficient source of income. The



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                                     3          50-Cri.Rev.Appln.359-22+1-Oral Jud.odt




     son was only two years old at the time of filing of the revision

     application. They have no source of income. 50% arrears of

     the maintenance has been deposited. However, respondents

     are not getting regular maintenance. The applicant avoided his

     responsibility to maintain the respondents. It may not be

     appropriate to remit the matter back, as there would be no

     change in the facts.


     5.      Perused the impugned order. It appears that the counsel

     for the applicant was appeared in the matter. However, he did

     not file reply and attend the proceeding. Cross-examination of

     the witnesses was not taken. It appears that there was a

     communication gap between the applicant and his counsel. An

     opportunity may be granted to the applicant to contest the

     matter on merit on certain conditions. Hence, the following

     order :

                                    ORDER

(i) Criminal Revision Application is allowed.

(ii) The impugned judgment and order granting maintenance passed by the learned Judge, Family Court, Jalna, in Petition No.E-127 of 2021, dated 25.02.2022 is quashed and set aside.

4 50-Cri.Rev.Appln.359-22+1-Oral Jud.odt

(iii) The case is remitted back to the learned Judge, Family Court, Jalna for deciding the matter on merit by granting an opportunity to both sides to lead the evidence within six(6) months from the receipt of this order, on the condition that the applicant shall clear the arrears of maintenance as per the impugned order @ Rs.5,000/- per month and continue to pay Rs.5,000/- per month, till the conclusion of the proceeding on merit.

(iv) Leave to withdraw arrears of 50% was already granted to the respondents.

(v) Record and Proceeding be returned to the Family Court, Jalna.

(vi) Criminal Application No.2856 of 2022 stands disposed of.

(vii) The applicant shall clear the balance arrears of maintenance within four (4) months by four equal installment.

(viii) Rule stand absolute.

(S. G. MEHARE, J.) ...

vmk/-