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2003 Supreme(UK) 282
2004 (1) UC 551
UTTARANCHAL HIGH COURT
HON'BLE IRSHAD HUSSAIN, J.
Yograj Khanna
versus
Smt. Rekha Khanna
Criminal Revision No. 86 of 2002
Decided on : 21.11.2003
Sri Arvind Vashistha, Advocate for Revisionist Sri J. C. Belwal, Advocate for Respondent.
The court emphasized the importance of affording the revisionist an opportunity to present his defense and contest the proceedings, setting aside the exparte judgment and granting interim maintenance allowance pending further proceedings.
Headnote:
Code of Criminal Procedure - Family Courts Act - Ex parte judgment set aside due to lack of opportunity for the revisionist to present defense and contest proceedings - Interim maintenance allowance granted pending further proceedings
Fact of the Case:
The respondent's application for maintenance allowance under section 125 of the 'Code' was allowed ex parte, and the respondent was awarded maintenance allowance at the rate of Rs. 15,000/- per month. The petitioner husband did not participate in the proceedings and no written statement was filed by him.
Finding of the Court:
The court found that the exparte judgment was not in the interest of justice as the revisionist had no opportunity to present his defense and contest the proceedings. The court set aside the exparte judgment and granted interim maintenance allowance at the rate of Rs. 3000/- per month to the respondent, with liberty to move an application for grant of interim maintenance before the Family Court.
Issues: Lack of opportunity for the revisionist to present defense, validity of the exparte judgment, interim maintenance allowance
Ratio Decidendi: The essential ingredients for effective decision of the matter were not fulfilled due to lack of opportunity for the revisionist to present his defense, leading to the setting aside of the exparte judgment and granting of interim maintenance allowance.
Final Decision: The revision petition was allowed, the exparte judgment was set aside, and interim maintenance allowance was granted to the respondent. The revisionist was directed to file a written statement within a period of six weeks, and the Family Court was directed to decide the application under section 125 of the 'Code' on merit within a period of three months.
Hon'ble Irshad Hussain, J. : Heard Sri Arvind Vashistha learned counsel for the revisionist and Sri J. C. Belwal learned counsel for the respondent.
2. This is a criminal revision under section 397/401 of the Code of Criminal Procedure (for short 'Code' ) read with section 19 (4) of the Family Courts Act, against the judgment dated 28-8-2002, whereby the application of the respondent under section 125 of the 'Code' was allowed exparte and she was awarded maintenance allowance at the rate of Rs. 15,000/- per month from the date of the presentation of the application.
3. From perusal of the impugned judgment it is evident that the petitioner husband did not participate in the proceedings and no written statement was filed by him. The order does not indicate that the revisionist was properly served with the summons of the case. Since the judgment is exparte the revisionist has had no opportunity to put forward his defence against the application for maintenance and also in regard to his capacity to pay the maintenance allowance. These were the essential ingredients for effective decision of the matter before the learned Principal Judge, Family Court and, therefore, it will be in the interest of justice that the exparte judgment is set aside and the revisionist is afforded an opportunity to file his written statement and contest the proceedings on merit.
4. Considering the above facts the impugned judgment dated 28-08-2002 deserves to be allowed. The revision petition is allowed and the exparte judgment dated 28 - 08 - 2002 is set aside. However it is directed that the revisionist shall pay interim maintenance allowance at the rate of Rs. 3000/- per month to the respondent from the date of this order. The respondent shall however have liberty to move an application for grant of interim maintenance before the learned Principal Judge, Family Court who shall pass an appropriate order on merit, if necessary, without guided by the quantum of interim maintenance allowance fixed by this order.
5. The revisionist shall file written statement within a period of six weeks and the learned Principal Judge, Family Court thereafter shall fix the date for the evidence in the case and decide the application under section 125 of the 'Code' on merit within a period of three months from the date of receipt of copy of this order.
