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2018 Supreme(Del) 408
IN THE HIGH COURT OF DELHI AT NEW DELHI
NAJMI WAZIRI, J.
MANISH KUMAR JAIN - Petitioner
Versus
AKANKSHA JAIN & ANR. – Respondents
CRL.REV.P. 295 of 2013 & CRL.M.A. 8002 of 2013
Decided on : 09-02-2018
Advocate Appeared:
For the Appellant :Mr. Prashant Mendiratta, Advocate and Ms. Malvika, Advocate.
For the Respondent:Ms. Anu Narula, Advocate
The ex-parte order can be set aside within 3 months from the date of the order, subject to good cause being shown.
Headnote:
Maintenance - Family Law - Code of Criminal Procedure (Cr.P.C.) - Domestic Violence (DV) Act, 2005 - Hindu Marriage (H.M.) Act - Section 125 Cr.P.C., Section 24 of H.M. Act, DV Act - 26(2) Cr.P.C.
Fact of the Case:
The appellant seeks to set aside an ex-parte maintenance order passed by the Family Court in favor of the respondent, his estranged wife. The appellant contests the order on the grounds of improper service of notice and the respondent's employment status.
Finding of the Court:
The Court found that the appellant's contentions regarding improper service of notice and the respondent's employment status were untenable. The Court upheld the impugned order and dismissed the appeal.
Issues: Improper service of notice, respondent's employment status, setting aside of ex-parte maintenance order.
Ratio Decidendi: The Court held that the ex-parte order could be set aside within 3 months from the date of the order, subject to good cause being shown. The Court also found that the direction to deposit 50% of the maintenance amount was justified as no monies had been paid to the estranged wife under the order.
Final Decision: The appeal was found to be without merit and was accordingly dismissed.
NAJMI WAZIRI, J
1. The learned counsel for the appellant states that the case was not heard by this Court substantively and since the Roster has changed, the matter stood released to be heard by the Roster Bench. The Court would however note, that the last order records:
“Arguments heard in part.
List for further arguments on 07.02.2018”.
2. This petition seeks the setting aside of an order passed by the Family Court, Judge-02, Saket, New Delhi on 08.04.2013, emanating from an ex-parte order dated 25.03.2010.
3. The petitioner and the respondent were married on 16.02.2005. In about two years, there was estrangement between them and the parties have been living separately ever since. The respondent sought maintenance under Section 125 Code of Criminal Procedure (Cr.P.C.), 1973. On 26.05.2009, the appellant was proceeded ex-parte since he did not appear in the proceedings despite being duly served. An amount of Rs.25,000/- was granted on 25.03.2010 after the Trial Court took into account the contentions of the applicant that the appellant was a person of means. While granting the said amount, the applicant’s (wife’s) family background too was taken into consideration.
4. In the appellant’s application for setting aside the ex-parte order, the Trial Court directed him to deposit 50% of the awarded amount since the applicant/wife had not been paid any monies from the time she had to leave the matrimonial home, particularly from March, 2010 onwards.
5. The learned counsel for the appellant states that the impugned order is erroneous since it directs the appellant to pay 50% of the maintenance amount without adjudicating upon the application for setting aside of ex-parte order.
6. It is the appellant’s contention that the impugned amount is not payable because the respondent otherwise is gainfully employed.
7. The appellant contends that since neither notice nor copy of the petition was served upon him, the ex-parte order is bad in law and should be set aside. He submits that he was out of station to attend a marriage on 25.09.2009 when the notice was allegedly served upon him at his mother’s address at B-38, Green Park, New Delhi, whereas contemporaneously his place of residence was 303, SFS Apartments, Hauz Khas, New Delhi; he was proceeded ex-parte on 26.05.2009 and the ex-parte maintenance amount was granted to the respondent on 25.03.2010; that the alleged service of notice at his mother’s address at B-38, Green Park, New Delhi, is no service because the respondent/applicant had already shifted at his new address at Hauz Khas; that the respondent has no reason to give his previous residential address i.e. his parents’ house, for effecting service of notice. It is also contended that the respondent’s application for grant of maintenance under the Domestic Violence (DV) Act, 2005 was declined in the first instance because she had not given any details about the rental being paid at the SFS Apartments. It is another matter though, that in appeal an amount of Rs.10,000/- was granted as maintenance under the D.V. Act.
8. Be that as it may, the Court would further note that the address of the appellant in the proceedings under the D.V. Act is shown as B-38, Green Park, New Delhi.
9. The appellant argues that there is not even a whisper of D.V. Act proceedings in the application under section 125 Cr.P.C. The appellant had already appeared in the same Court in which other proceedings between the parties were pending. Therefore, there was no occasion for him to not appear in the proceedings under section 125 Cr.P.C. The notice was never served at his actual address, hence, ex-parte proceedings under section 125 Cr.P.C. were erroneous and should be set aside.
10. Refuting the aforesaid arguments, the learned counsel for the respondent submits that the appellant was duly served but he chose not to appear in the proceedings; he has resisted payment of any maintenance amount to the respondent – his estranged wife. The story of his new residen
