Uttarakhand High Court
Unknown vs State And Another on 5 August, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No.736 of 2023
Amit Rastogi
--Revisionist
Versus
State and another
--Respondents
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Presence:-
Mr. M.K. Ray, learned counsel for the revisionist.
Mr. S.C. Dumka, learned AGA for the State.
Mr. Digvijay Singh Bisht, learned legal aid counsel for respondent
no.2.
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Hon'ble Pankaj Purohit, J.
Heard learned Counsel for the parties.
2. This revision is directed against the order
dated 28.08.2023 passed by learned Judge, Family
Court-I, Rudrapur, District U.S. Nagar in Case No.234 of
2022, whereby the Court, while setting aside the ex
parte order dated 31.08.2022 passed earlier, has
imposed four conditions.
3. It is reflected from the revision that the order
impugned has imposed inter alia condition nos.2 and 3
whereby the Family Court while setting aside the ex part
order, directed the revisionist -husband to pay a sum of
Rs.5,000/- as interim maintenance till the disposal of
application u/s 125 Cr.P.C. and further, to pay at least
50% of total maintenance to be paid in pursuant of the
said order till date.
4. The respondent no.2 had filed criminal case
no.314 of 2019 u/s 125 Cr.P.C. against the revisionist.
He did not appear in the Court despite sufficient service
and hence the case proceeded ex parte against him on
15.07.2022. By ex parte order dated 31.08.2022,
application u/s 125 Cr.P.C. was allowed and revisionist
was directed to pay Rs.15,000/- as maintenance to the
respondent no.2 from the date of order. The revisionist
then moved the application u/s 126(2) Cr.P.C.
According to him he could not get knowledge of the said
case. He came to know about the case on 15.09.2022
and on 17.09.2022 he applied for copies and then after
obtaining the copies, he moved the application for recall
of ex parte order.
5. Learned counsel for the revisionist has
submitted that the interim order could not be passed by
the Court in as much as there is no application for
interim maintenance by the respondent-wife. It is also
submitted that three children are living with the
revisionist. It is further submitted that respondent-wife
has left the company of revisionist without any sufficient
reason.
6. Per contra, learned counsel for respondent-
wife submits that there is no infirmity in the impugned
judgment. The Court below was well within its powers
to pass the order of interim maintenance while setting
aside the ex parte order, and there is no error in
granting interim maintenance to the wife during
pendency of the case. He further submits that payment
of arrears was also directed to be paid to the respondent
wife to the tune of at least 50%.
7. Having considered the rival submissions of
parties and after going through the impugned order, this
Court is of the view that while setting aside the ex parte
order, the conditional order was passed. There is no
illegality in it. If the order is passed for the payment of
interim maintenance @Rs.5,000/- p.m. there is no
infirmity in the said order.
8. So far as the argument of learned counsel for
the revisionist is concerned that there is no application
and the income has not been determined between the
parties, therefore such an order cannot be passed, the
same cannot sustain in the eyes of law simply for the
reason that the rights of parties are yet to be adjudicated
through finally deciding of the application u/s 125
Cr.P.C.
9. However, insofar as the fact of condition
precedent for depositing at least 50% of the total
maintenance to be paid in pursuance of the said order is
concerned, this Court finds that condition to be quite
illegal and arbitrary for the reason that once the ex parte
judgment and order of maintenance was set aside,
arrears thereof cannot be directed to be paid as a
condition precedent. Maintenance would be ascertained
by the Trial Court after finally deciding the application
u/s 125 Cr.P.C. after hearing both the parties. Thus,
this condition deserves to be struck down. Accordingly,
condition no.3 of the impugned order i.e. the applicant
shall deposit at least 50% of the total maintenance
amount, is set aside.
9. The revision is, accordingly, partly allowed.
Impugned order dated 28.08.2023 passed by the Court
below is modified to the aforesaid extent only.
(Pankaj Purohit, J.)
05.08.2025
Rdang
