JUDGMENT :

Tashi Rabstan, J.

1. Respondent, a minor girl child studying in 9th Class, through her mother is in Courts since 2012, defending her right to claim maintenance from her father, the petitioner herein, who claims to be unaware of his moral and legal duty to maintain his minor daughter.

2. Petitioner through the medium of this second revision petition, calls in question, the order dated 22.08.2013, passed by Learned Additional Sessions Judge, Jammu, whereby his criminal revision No. 06/Cr. Rev. has been dismissed and order dated 25.03.2014, passed by the Electricity Magistrate (JMIC), Jammu, rejecting the application of the petitioner for condonation of delay in filing application for setting aside the exparte order dated 26.09.2012, in a case titled ‘Minal Kour v. S. Amarjeet Singh’ whereby it has granted maintenance @ Rs. 5000/- per month in favour of the minor daughter-the respondent herein. Alternatively, the petitioner prays to treat this petition under Section 561-A Cr.P.C for quashing the aforesaid orders.

3. Heard and considered the rival contentions of learned counsel appearing for the parties and perused the record.

4. It has been contended by the learned counsel appearing for petitioner that the petitioner was never duly served and the Magistrate has not recorded his satisfaction as to the willful avoiding of service of summons while proceeding ex-parte, thus, the petitioner has been condemned unheard which is against the mandate of law. It is further contended that presumption of service of petitioner drawn by Courts below from the appearance of father of petitioner before the judicial clerk on 28th April, 2012, who is a practicing advocate, is not legally sustainable, as the Ld. Presiding Officer was on leave that day. He further avers that subsequent issuance of notice on 03.05.2012, is an acknowledgement of the fact that the alleged appearance of father of petitioner is of no consequence. He also submits that Courts below have failed to appreciate the fact the petitioner is not earning like as pleaded and determined, whereas, the mother of the respondent is a earning lady and is able to maintain the respondent as after the divorce between the petitioner and the mother of the respondent, the respondent is living with the mother. The learned counsel has also challenged the order refusing to condone the delay and consequently rejecting the application setting aside the said ex-parte order of maintenance on the ground that no justifiable reasons are mentioned by Trial Court in its order and delay was on account of his pursuing the legal remedy before revision court.

5. Per contra, learned counsel appearing for the respondent has submitted that the petitioner being a father of the respondent, a minor girl child, has moral and legal duty to maintain the respondent and cannot shift this obligation by stating that the mother of the respondent is earning lady. She contends that service of summons regarding maintenance proceedings upon the petitioner is duly effected and summons were received by the father of the petitioner as reflected in the report of process server dated 21.04.2012 pursuant to Court order dated 16.04.2012, which is further fortified by consequent appearance of father of the petitioner before court on 28.04.2012. She further contends that subsequent issuance of notice on 03.05.2012, doesn’t show that previous acceptance of notice and appearance was of no consequence. She further contends that even the subsequent report of process server dated 21.05.2012, says that the petitioner was not at home and the process server informed his family members about next date fixed in the case before the Court.

6. At the very outset, it is made clear that this petition in the form of second revision is not maintainable in view of sub clause 3 to Section 435 of Criminal Procedure Code which clearly says that aggrieved party can file revision either to the High Court or to the Sessions Judge, and no further application