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Chattisgarh High Court

Prasad Alias Kamlesh Chudiwal vs Smt. Diksha Jain on 5 December, 2022

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                                                                          NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                 Criminal Revision No.396 of 2022
    Prasad alias Kamlesh Chudiwal S/o Pradeep chudiwal, Aged
    about 29 years, R/o 209, Near Uday Kirana, Balaji Nagar
    (wrongly   mentioned   as   Baji   Nagar),   Aurangabad,
    Maharastra
                                                            ­­­­ Applicant
                                Versus
    Smt.Diksha Jain, W/o Prasad alias Kamlesh Chudiwal, Aged
    About 27 years, R/o Yadav Chowk, Ruabandha, Tehsil and
    District Durg (CG)
                                                           ­­­­ Respondent

For Applicant : Mr.Yashwant Singh Thakur, Advocate For Respondent : Mr.Anmol Sharma Advocate Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 05.12.2022 With the consent of learned counsel for the parties, the matter is heard finally.

1. This criminal revision is directed against the order dated 11.11.2019 passed by the Second Additional Principal Judge, Durg in Miscellaneous Criminal Case No.908/2019, whereby the learned Family Court has passed ex parte order under Section 125 of the Code of Criminal Procedure against the applicant / husband granting maintenance @ Rs.10,000/­ per month to the respondent / wife.

2. Mr.Yashwant Singh Thakur, learned counsel for the applicant, submits that it is undisputed that marriage of the respondent was solemnized with the applicant on 23.11.2017 at Aurangabad (Maharashtra) and the applicant 2 was employed at Capgemini Technology Services India Limited at Pune (Maharashtra). He further submits that notice of maintenance proceeding was not properly served to the applicant and case was decided ex­parte. His limited prayer is that the case may be remitted back because of non­proper service of summons for proper adjudication on merits of the case as the applicant / husband was residing at Pune and not at Aurangabad though registered notice was sent at Aurangabad address.

3. On the other hand, Mr.Anmol Sharma, learned counsel for the respondent, submits that proper service has been made and deliberately, the applicant has avoided the service at Aurangabad. He however submits that he has no objection if the case is remitted back to the concerned Family Court and if sufficient maintenance is paid within the stipulated time to participate in the proceedings. He would place reliance of the Supreme Court in the matter of Pratima Devi & Anr. v. Anand Prakash [Special Leave to Appeal (Crl. No.7203/2019], decided on 16.9.2019, in which also, ex­parte order was passed and in criminal revision the said order was stayed, the Hon'ble Supreme Court considering the laudable object of such provision vacated the stay order.

4. I have heard learned counsel for the parties and perused the documents annexed with revision.

5. Having considered the submissions of learned counsel for the parties, particularly considering that ex­parte proceeding has been drawn against the applicant / husband as noticed has been received unserved as unclaimed, learned counsel for the applicant specifically submitted that in such period, the applicant / husband was residing at Pune and not at Aurangabad, the instant revision is duly supported with an affidavit of the applicant, further considering that relationship of the applicant and the respondent is not disputed and it is also not in dispute that the applicant was employed in Capgemini Technology Services India Limited at Pune (Maharashtra) and considering that in the impugned order, it has been observed that net salary of the applicant was found to the tune of Rs.40,000/­ per month and also considering the submission of the learned counsel for the respondent that till so far no payment was made by the applicant and thereby he is neglecting the wife for maintenance, this Count find it appropriate that if the applicant within two months from today clears all the arrears from the date of application i.e. 29.7.2019 and at least pays 50% of the arrears to the respondent / wife before participating in proceedings before the Family Court, then interim maintenance is fixed to the tune of Rs.6000/­ per month, which will be adjustable in final 4 order.

6. Accordingly, criminal revision is allowed in part. The ex­parte order dated 11.11.2019 is set aside. The matter is remitted back to the concerned Family Court to pass order afresh. Parties are directed to remain present before the concerned Family Court on 12th January, 2023. The amount which will be deposited by the applicant / husband be paid to the respondent / wife by the concerned Court. If no such amount is deposited by the applicant / husband within the stipulated time, this order shall lose its efficacy.

Sd/­ (Deepak Kumar Tiwari) Judge B/­