IMPORTANT POINT
A Family Judge can impose payment conditions when setting aside an ex parte maintenance order under Sections 125 and 126 Cr.P.C.

ORDER :

V.R.K. Krupa Sagar, J.

A Muslim husband filed this Criminal Revision Case under Sections 397 and 401 of Code of Criminal Procedure (‘Cr.P.C.’) impugning that part of the order of the learned trial Court which has gone against his interest.

2. Respondent No.1 is a woman who claimed maintenance before the Court below and she is stated to be the wife of the revision petitioner. Respondent No.2 is the State.

3. Heard Sri Mekala Ramamurthy, the learned counsel for revision petitioner and Sri Subba Rao Jandhyam, the learned counsel for respondent No.1.

4. A few facts are to be noticed :

Smt. Shaik Azima filed a petition under Section 125 Cr.P.C. claiming a monthly maintenance of Rs.10,000/- and for costs and other reliefs. That case was registered as M.C.No.7 of 2018. She made this claim against Sri Shaik Mahaboob Subhani, who is the revision petitioner here. On 14.10.2018 learned Judge, Family Court-cum-VIII Additional District Judge, Prakasam at Ongole disposed of the said maintenance claim by granting monthly maintenance of Rs.5,000/- to the petitioner therein. At paragraph No.3 of the said order, it is stated that the respondent- Sri Shaik Mahaboob Subhani was served with notice but failed to make appearance by himself or through his counsel on 09.06.2018 and failed to file counter and therefore, he was set ex parte. Thus, it was an ex parte order of maintenance. As could be noticed from paragraph No.9 of the said order, prior to the disposal of this main claim for maintenance, the learned Judge had also granted interim maintenance to the woman. How it must be adjusted is mentioned in the operative portion of the maintenance order.

5. Sri Shaik Mahaboob Subhani filed Crl.M.P.No.353 of 2020 in M.C.No.7 of 2018 before the learned Family Judge praying to set aside the ex parte maintenance order. Smt. Shaik Azima filed her counter. After due hearing, the learned Family Judge by order dated 06.02.2023 allowed that petition and the operative portion of the order available at paragraph No.11 is extracted here :

“In the result, the petition will be allowed, subject to payment of arrears of amount of Rs.45,000/- covered under Crl.M.P.No.150 of 2018 on or before 06.03.2023, otherwise the petition shall stand dismissed.”

6. Sri Shaik Mahaboob Subhani is satisfied with the order of setting aside the ex parte order of maintenance but is aggrieved for the other condition prescribed in the said order whereunder he was asked to pay Rs.45,000/-. Challenging that part of the said order, he filed the present revision. Therefore, the only question that falls for consideration here is :

“Whether the learned Family Judge committed any legal error in directing this revision petitioner to deposit Rs.45,000/- while setting aside the ex parte order of maintenance?”

7. In the grounds mentioned in the revision and the submissions made by the learned counsel for revision petitioner, it is stated that the marriage between the spouses stood dissolved on 23.09.1990 whereunder he had agreed to pay and actually paid Rs.5,000/- to his wife Smt. Shaik Azima towards her permanent alimony and Rs.10,000/- to their minor child towards his permanent alimony. It is in the above referred circumstances the submission of the learned counsel is that there was no more obligation on part of the revision petitioner to pay any maintenance and the learned Family Judge erred in directing him to pay Rs.45,000/- towards arrear maintenance.

8. As against it, the learned counsel for respondent No.1 submitted that the impugned order is in accordance with law and what is urged here is yet to be established by him by filing necessary counter in M.C.No.7 of 2018 and despite orders from the competent Court, the wife has not been receiving anything and therefore, the just order passed by the Family Judge is sought to be upset on unjust grounds.

9. On considering the rival submissions and the material on record, the following aspects are to be stated :

Proviso to Sub-Section (2) of Section 126 Cr