Rajasthan High Court - Jodhpur
Jai Prakash vs Abhilasha Sharma & Anr on 14 December, 2016
Author: Sandeep Mehta
Bench: Sandeep Mehta
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
S.B.CIVIL WRIT NO. 14549 / 2016
Jai Prakash S/o Sh. Nathu Lal, Aged About 34 Years, Address:
R/o Harinarainpura, Tehsil Chaksu, District Jaipur
----Petitioners
Versus
1. Abhilasha Sharma W/o Sh. Jai Prakash, Aged About 30
Years, Address: R/o D-1, Tagore Nagar, Pali
2. Akshay S/o Jai Prakash Age 3 Year, Through the Natural
Guardian Mother Respondent No. 1 Smt. Abhilasha Sharma W/o
Sh. Jai Prakash, Address: R/o D-1, Tagore Nagar, Pali
----Respondents
__________________________________________
For Petitioners : Mr.RDSS Kharlia.
__________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order 14/12/2016 By way of this writ petition, the petitioner Jai Prakash has approached this Court for challenging the order dated 10.12.2015 passed by the learned Family Court, Pali in Misc.Application No.182/2015 for recovery of maintenance and directing that in case the petitioner does not pay maintenance ordered to be paid to the respondents being his wife and child, he should be arrested.
Shri Kharlia learned counsel representing the petitioner vehemently and fervently argued that the petitioner has always been ready and willing to maintain his wife and child. The maintenance order dated 10.12.2015 was passed ex-parte behind the back of the petitioner without proper service being (2 of 4 ) [CW-14549/2016] effected on him. The petitioner has moved an application for recalling of the ex-parte maintenance order way-back in the month of February 2016. The petitioner also filed an anticipatory bail application before this Court in relation to the F.I.R. No.57/2014 lodged by the respondent wife Smt.Abhilasha at the Mahila Police Station Pali. During the hearing of the said bail application, in order to show his bonafides, the petitioner handed over a demand draft for a sum of Rs.5 lacs to Smt.Abhilasha. The Court, while accepting the bail application by order dated 10.7.2015 made it clear that the said amount will be deducted from future maintenance of the complainant and her child or towards the dowry articles or towards the final settlement if any agreed between the parties. Learned counsel contends that as the petitioner has already made payment of huge sum of money to the tune of Rs.5 lacs to Smt.Abhilasha, it virtually amounts to advance payment towards maintenance awarded and thus, there was no justification whatsoever for the learned Family court to have issued warrant of recovery against the petitioner. He further prayed that the parties be summoned before this Court and be sent for mediation so as to settle the entire dispute finally. He urged that the impugned order deserves to be quashed and set aside as being unjust and arbitrary.
I have heard and considered the arguments advanced by Shri Kharlia and have gone through the impugned order and the other material placed on record.
(3 of 4 ) [CW-14549/2016] It is manifest from the record that despite service of summons, the petitioner did not appear before the Family Court to contest the application submitted by the respondents for seeking maintenance under Section 125 Cr.P.C. and accordingly, the same was allowed ex-parte by order dated 10.12.2015. The petitioner claims to have filed an application for recalling the ex-parte order way-back in the month of Februrary 2016 but fate of the application thereafter has not been disclosed in the pleadings of the writ petition. Even in the proceedings for recovery, notice was issued and served upon the petitioner but he chose not to remain present before the Family court in those proceedings as well.
In this background, there was no option with the Family Court but to issue warrant of recovery of the maintenance amount as per the procedure provided in law. In the application for recalling of the ex-parte proceedings, the petitioner has not given any reference to the order dated 10.7.2015 passed by this Court in the petitioner's anticipatory bail application. Thus, there was no occasion for the Family court to consider the effect thereof on the recovery proceedings.
If at all, the petitioner is sincere in his endeavour to settle the dispute with his wife and child, then he would be better advised to approach the Family Court where mediation proceedings can be undertaken.
The impugned order ex-facie does not suffer from any illegality, irregularity, perversity or error apparent on the face of (4 of 4 ) [CW-14549/2016] record so as to require interference in exercise of the supervisory writ jurisdiction of this Court.
In view of the discussion made hereinabove, the instant writ petition as well as stay application being devoid of any merit are hereby dismissed.
No order as to costs.
(SANDEEP MEHTA)J. /tarun/