Uttarakhand High Court
Charanjeet Sood vs State Of Uttarakhand And Others on 16 November, 2022
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 661 of 2022
Charanjeet Sood ....Revisionist
Vs.
State of Uttarakhand and Others ..... Respondents
Presents:-
Mr. Vaibhav Singh Chauhan, Advocate for the revisionist.
Mr. B.P.S. Mer, Standing Counsel for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to
the orders dated 06.08.2022, 27.09.2022 and
13.10.2022, passed in Misc. Criminal Case No. 227 of
2021, Smt. Rashmi Sood Vs. Charanjeet Sood, by the
court of Principal Judge, Family Court, Haridwar,
Haridwar ("the case"). By the impugned order dated
06.08.2022, the court below has directed that the case
shall be proceeded ex parte against the revisionist; By
the impugned order dated 27.09.2022, an application
filed by the revisionist for setting aside the order dated
06.08.2022, has been rejected and by the impugned
order dated 13.10.2022, an application of the revisionist
seeking assistance of legal practitioner has been
rejected.
2. Heard learned counsel for the revisionist
and perused the record.
3. The case is based on an application filed
under Section 125 of the Code of Criminal Procedure,
1973 ("the Code") by the respondent nos. 2 and 3. It is
the basis of the case.
4. It appears that in the case, the revisionist
did not appear and the court, on 06.08.2022, ordered
that the case shall proceed ex parte against him.
Thereafter, an application was filed by the revisionist for
setting aside the order dated 06.08.2022, which was
rejected by the order dated 27.09.2022.
5. Subsequent to it, on 13.10.2022, the
revisionist filed an application for seeking assistance of a
legal practitioner, but it was rejected, in view of the fact
that the case had already been ordered to proceed ex
parte against him.
6. The Court wanted to know from the learned
counsel for the revisionist as to why an application may
be filed for setting aside some orders, by which the
application under Section 125 of the Code has been
ordered to proceed ex parte? The Code does not
prescribe any provision analogous to the provision, as
contained under Order IX Rule 6(1)(a) of the Code of Civil
Procedure, 1908. In fact, there is no provision in the
Code analogus to order IX Rule 7 of the Code of Civil
Procedure, 1908. Section 126(2) of the Code provides
that all the evidence in cases under Section 125 of the
Code shall be recorded in the presence of the person
against whom the application is proposed. But, its
proviso empowers the Court that in case the person,
against whom the application is filed, wilfully avoids the
service or does not appear before the court, the matter
may be decided ex parte and such ex parte order may be
set aside. Section 126 of the Code is as hereunder:-
"126. Procedure.--(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 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.
(3) The Court in dealing with applications under
section 125 shall have power to make such order
as to costs as may be just."
(Emphasis supplied)
7. Section 126 of the Code only speaks that
evidence in case under Section 125 of the Code shall be
recorded in the presence of the parties. It also provides
that in case a person, against whom such order is
sought, wilfully avoids service of summons or neglects in
attending the court, the court may hear the matter ex
parte.
8. If an order is passed that the application
under Section 125 of the Code shall be heard ex parte
and on the subsequent date, the person, against whom
such order for maintenance is sought, appears, how can
he be denied his participation?
9. Learned counsel for the revisionist would
submit that at this stage he restricts his prayer to the
order dated 13.10.2022, by which the revisionist has
been denied assistance of a legal practitioner.
10. Section 13 of the Family Court's Act, 1984
("the Act"), inter alia, provides that "Notwithstanding
anything contained in any law, no party to a suit or
proceeding before a Family Court shall be entitled, as
of right, to be represented by a legal practitioner:
Provided that if the Family Court considers it
necessary in the interest of justice, it may seek the
assistance of a legal expert as amicus curiae."
11. The revisionist was seeking assistance of a
legal practitioner. He is not entitled to it as a matter of
right in view of Section 13 of the Act. But, at the same
time, it may not be denied to him on the ground that the
case has already been ordered to proceed ex parte
against him. Therefore, the order dated 13.10.2022, is
not in accordance with law. It deserves to be set aside.
12. The revision is allowed.
13. The impugned order dated 13.10.2022,
passed in the case, are set aside.
14. The court below is directed to decide the
application for seeking assistance of legal practitioner
filed by the revisionist, in accordance with law,
irrespective of the fact that the case has already been
ordered to proceed ex parte against the revisionist.
(Ravindra Maithani, J.)
16.11.2022
Ravi Bisht
