Uttarakhand High Court
Ajay Sharma vs State Of Uttarakhand And Another on 10 June, 2022
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 279 of 2022
Ajay Sharma ...... Revisionist
Vs.
State of Uttarakhand and Another ..... Respondents
Mr. Vivek Shukla, Advocates for the revisionist.
Mr. Lalit Miglani, A.G.A. assisted by Ms. Sonika Khulbe, Brief Holder for
the State of Uttarakhand.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to
the order dated 28.04.2022, passed in Criminal Case No.
32 of 2022, Ajay Sharma Vs. Archana Sharma, by the
Family Court, District-Haridwar. By it, an ex-parte order
dated 10.09.2021, passed under Section 125 of the Code
of Criminal Procedure, 1973 ("the Code") has been set
aside subject to payment of Rs. 1,50,000/-.
2. Heard learned counsel for the revisionist
and perused the record.
3. The record reveals that the
respondent no. 2 ("the applicant"), the wife of the
revisionist, filed an application under Section 125 of the
Code seeking maintenance from the revisionist. The
revisionist filed his objections but subsequently, he
remained absent and the case proceeded ex-parte
against him on 16.08.2021. By the impugned judgment
and order, on 10.09.2021, the application under Section
125 of the Code filed by the applicant has been allowed
and the revisionist was directed to pay Rs. 30,000/- per
month as maintenance to the applicant. It appears that
subsequently the revisionist moved an application under
Section 126(2) of the Code for setting aside the ex-parte
order dated 10.09.2021.
3. Having considered all the attending
circumstances, the court, by the impugned order dated
28.04.2022, allowed the application under Section
126(2) of the Code, filed by the revisionist, subject to
payment of Rs. 1,50,000/- to the applicant. Aggrieved by
it, the revisionist is before this Court.
4. Learned counsel for the revisionist would
submit that the revisionist works in a ship; he works for
6 months; the amount, which has been directed to be
paid, is excessive; the revisionist has responsibility to
maintain his mother who is old aged and his son,
therefore the amount needs to be reduced.
5. During the course of argument, it is
admitted that the salary of the revisionist is Rs.
50,000/- per month. In fact, in the ex-parte judgement
and order dated 10.09.2021, while making reference to
the objections filed by the revisionist, it is recorded that
the salary of the revisionist is Rs. 50,000/- per month.
6. Section 126 of the Code provides for the
procedure to hear an application under Section 125 of
the Code. According to sub-Section 2 of it, in cases
where the opposite party avoids its presence in the
court, the Magistrate may proceed to hear and determine
the case ex-parte. Such ex-parte order 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. Section 126 (2)
of the Code is as hereunder:
Section 126(2) of the Code of Criminal Procedure, 1973:
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 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 as to payment of costs to the opposite
party as the Magistrate may think just and proper.
7. A bare perusal of the above sub-Section, as
discussed hereinabove, makes it abundantly clear that
the court is competent to impose such costs as the
Magistrate may think just and proper.
8. In the instant case, after filing his objection
in a proceeding under Section 125 of the Code, the
applicant remained absent for 16.08.2021, when the
case proceeded ex-parte against him. On 10.09.2021,
ex-parte judgment and order was passed. The
revisionist, moved an application for its setting aside,
sometime in the year 2022, and on 28.04.2022, it was
set aside.
9. The court took into consideration the plight
of the applicant and allowed the application under
Section 126 (2) of the Code subject to payment of Rs.
1,50,000/- to the applicant as maintenance with a rider
that it shall be adjusted with the maintenance amount.
Technically speaking, this part could have been avoided.
Is it in the nature of interim maintenance or costs? But
in the operating part of the impugned order dated
28.04.2022, the court simply allowed the application
under Section 126(2) of the Code filed by the revisionist,
subject to his paying Rs. 1,50,000/- to the applicant.
The operative portion does not speak as to whether this
is interim maintenance or costs.
10. Be it as it may, as quoted hereinabove,
Section 126 (2) of the Code empowers the Magistrate to
set aside an ex-parte order subject to cost as it thinks
just and proper.
11. The court considered that the revisionist is
working. The court considered that when recovery
proceedings were initiated, the application under Section
126 (2) of the Code was filed. The court observed, "The
applicant may not continuously be divested of her
right to maintenance". Accordingly, the revisionist has
been directed to pay Rs. 1,50,000/- and subject to
payment of such amount, the ex-parte order has been
set aside.
12. This Court does not see any error in this
order. Therefore, there is no reason to make any
interference in the matter. The impugned order is in
accordance with law. Accordingly, the revision deserves
to be dismissed at the stage of admission itself.
13. The revision is dismissed in limine.
(Ravindra Maithani, J.)
10.06.2022
Ravi Bisht
