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RAJASTHAN HIGH COURT
SINGLE BENCH
Manoj Kumar Garg, J.
MUKESH KUMAR — Appellant
Vs.
STATE OF RAJASTHAN — Respondent
Criminal Misc.(Pet-) No. 41 of 2019
Decided on : 02-12-2019
Counsel for Appearing Parties
Mr. K.L. Thakur Mr. Narendra Gehlot, For the Appellants; Mr. Gaurav Singh, P.P. Mr. Devki Nandan Vyas, For the Respondents No. 2 & 3, For the Respondents
The High Court has the power to quash an ex-parte order of maintenance passed by the trial court and the order of the revisional court affirming the same, and remand the case back to the trial court for a fresh hearing, if it finds that the summons were not properly served upon the petitioner and that he was denied an opportunity of hearing.
Headnote:
MAINTENANCE - SECTION 125 CR.P.C - SECTION 65 CR.P.C - SECTION 126(2) CR.P.C - SECTION 482 CR.P.C - The High Court quashed the ex-parte order of maintenance passed by the trial court and the order of the revisional court affirming the same, and remanded the case back to the trial court for a fresh hearing, holding that the petitioner should be granted an opportunity of hearing before an order of maintenance is passed against him.
Fact of the Case:
The petitioner challenged the ex-parte order of maintenance passed by the trial court and the order of the revisional court affirming the same, arguing that the summons were not properly served upon him and he was denied an opportunity of hearing.
Finding of the Court:
The High Court found that the summons were not personally served upon the petitioner and that he had not deliberately tried to avoid the service of summons. The Court also held that the petitioner should be granted an opportunity of hearing in the interest of justice before an order of maintenance is passed against him.
Issues: 1. Whether the summons were properly served upon the petitioner? 2. Whether the petitioner should be granted an opportunity of hearing before an order of maintenance is passed against him?
Ratio Decidendi: 1. The provisions of Section 65 of the Cr.P.C postulate that if service cannot be effected as provided in Sections 62, 63, or 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper. 2. In the present case, personal service was not affected upon the petitioner and it is not the case of the respondents that the petitioner has deliberately tried to avoid the service of summons.
Final Decision: The High Court quashed the impugned orders dated 16.11.2018 and 14.10.2017 and remanded the case back to the trial court for a fresh hearing, directing the petitioner to appear on each and every date fixed by the trial court and to deposit a sum of Rs. 25,000/- as litigation expenses on 16.12.2019.
ORDER
1. Instant misc petition under Section 482 Cr.P.C has been filed by the petitioner against the order dated 16.11.2018 passed by District and Sessions Judge, Sirohi by which the revisional court dismissed the revision petition filed by the petitioner and affirmed the order dated 14.10.2017 passed by learned Additional Chief Judicial Magistrate, Sheoganj, District Sirohi by which the learned trial court allowed the application filed by the respondent wife and ordered to pay maintenance to the wife in the sum of Rs.8000/-per month.
2. Brief facts of the case are that respondent wife preferred an application under Section 125 Cr.P.C for grant of maintenance in the court of learned Additional Chief Judicial Magistrate, Sheoganj in which she mentioned that marriage of petitioner and respondent no.2 was solemnized as per Hindu rites. After marriage, a son Himanshu was born out of the wedlock. It was alleged that right from the marriage, the petitioner husband and his family members harassed the respondent no.2 Smt. Urmila demanding dowry and turned her out. It was alleged that petitioner is doing business in the name of Ajanta Electronics and therefore, maintenance in the sum of Rs. 25,000/- per month may be granted.
3. The Court issued notice to the petitioner but he could not appear and an ex-parte order was passed passed by learned Additional Chief Judicial Magistrate, Sheoganj vide order dated 14.10.2017.
4. Feeling aggrieved by the ex-parte order dated 14.10.2017, a revision petition was preferred before the learned Sessions Judge, Sirohi. However, the learned Sessions Judge dismissed the revision petition vide order dated 16.11.2018.
5. Counsel for the petitioner submits that the notice was not personally served upon the petitioner. When the first notice was issued to the petitioner, he was not present in the house and house was locked so the notice was affixed on the wall of the house in presence of two motbirs. A second notice was issued to the petitioner which was served upon the petitioner's uncle. Thus, it is submitted that summons/notices were not properly served upon the petitioner and in absence of proper service, the petitioner could not appear and defend his case, therefore, the ex-parte order passed by court below so also the order passed by the revisional court may be set aside. Learned counsel place reliance on the judgment in the case of R.K. Surendra Babu Vs. Sayed Ataullah reported in 2010 (3) Criminal Court Cases 418, Rajesh Agarwal Vs. State & Anr. reported in 2010 (4) Criminal Court cases 549 (Delhi), State of Karnatak Vs. Nallayappa reported in 1996 Cri.L.J 3539 and Rama Chandra Mishra Vs. State of Orissa & Anr. reported in 1995(4) crimes 54.
6. Per contra, counsel for the respondent no.2 submits that the present misc. petition filed by the petitioner against the order passed by the learned District and Sessions Judge, Sirohi in revision petition is not maintainable at all. He submits that petitioner has alternative remedy to challenge the ex-parte order under Section 126(2) Cr.P.C, therefore, the misc. petition is not maintainable and same may be dismissed. It is further argued that petitioner had already filed a revision petition which was dismissed, therefore, the present misc. petition is virtually a second revision petition, therefore, same is not maintainable and is liable to be dismissed. It is further argued since passing of the maintenance order by the trial court, the petitioner has not paid a single penny, therefore, the petitioner has illegally denied maintenance to the respondent no.2 wife and child. Learned counsel placed reliance on judgments in the case of Laxmi Bai Patel Vs. Shyam Kumar Patel reported in 2002 (2) ACR 1257, Anu Vs. Ratan lal Sharma reported in II (1994) DMC 338 and Vivek Mathur Vs. State of U.P. reported 2018 (104) ACC 808.I have considered the rival contention of the parties as well as carefully gone through the material on record.
7. From the facts on record, it is evident t
