IMPORTANT POINT
The court affirmed that ex-parte proceedings are valid when a party fails to appear, and maintenance can be estimated based on available evidence and circumstances.

JUDGMENT :

RAVINDRA MAITHANI, J.

1. The challenge in this revision is made to the ex-parte judgment and order dated 29.08.2023, passed in Case No. 30 of 2020, Smt. Ayushi and Another Vs. Sri Jai Prakash by the court of Additional Family Judge, Roorkee, District Haridwar (“the case”).

2. Heard learned counsel for the parties and perused the record.

3. The respondent no. 1 filed an application under Section 125 of the Code of Criminal Procedure, 1973 (“the Code”) claiming maintenance from the revisionist. It has been the case of the respondent no. 1 that she and the revisionist were married on 06.12.2014. They were blessed with a baby girl, the respondent no. 2. But after marriage, the revisionist and his family members were not happy with the dowry given and they started demanding a Swift Desire car and Rs.3 Lakh in cash, due to which the respondent no. 1 was harassed. She was beaten up also. On 01.06.2015, the respondent no. 1 was expelled from her matrimonial house by the revisionist. There only she had delivered a baby girl. According to the respondent no. 1, she is not able to maintain herself, whereas the revisionist works in Merchant Navy and earns Rs.1,80,000/- per month salary. Claim for Rs.50,000/- per month maintenance was made by the respondent no. 1.

4. In the case, the revisionist was served with the notice. He appeared. On 09.01.2023, the date was adjourned in the case on the adjournment application filed by the revisionist. The next date fixed was 15.02.2023. On that also the revisionist filed an adjournment application and the next date fixed was 14.03.2023. On 14.03.2023, the revisionist did not appear and the case proceeded ex-parte against him. On the next date i.e. on 11.04.2023, the respondent no. 1 filed her ex-parte evidence and subsequently impugned order has been passed.

5. Learned counsel for the revisionist would submit that the ex-parte proceeding order is not good in the eye of law. He would refer to the margin of order sheet dated 15.02.2023, wherein, it is recorded that the respondent is not present proceed ex-parte. It is argued that this endorsement is made by the respondent no. 1 herself. Therefore, based on such endorsement, ex-parte proceeding could not have been initiated.

6. Learned counsel has raised the following points:

(i) The respondent no. 1 has concealed the fact that in another application under the Protection of Women From Domestic Violence Act, 2005 (“the Act”) in the year 2021, the respondent no. 1 and 2 were awarded Rs.8,000/- per month maintenance. But, it is argued that this factum was concealed by the respondent no. 1 in her application under Section 125 of the Code.

(ii) The income of the revisionist has not been proved by any documentary evidence and the assessment of income is mere guess work.

7. Learned counsel for the respondent nos. 1 and 2 would submit that notice was properly served on the revisionist. He did not chose to appear. He did not file any objection.

8. The copy of order sheets has been filed as Annexure 2 in this revision. It categorically records that on 09.01.2023, the case was adjourned on an application of the revisionist. Thereafter, on 15.02.2023, the case was also adjourned on an application of the revisionist and the next date fixed was 14.03.2023. The order sheet of date fixed 14.03.2023 is quite explicit and records that the revisionist did not appear on that date and the case proceeded ex-parte against him.

9. Who made the endorsement below the order sheet dated 15.02.2023 may not be speculated by the Court. The fact remains that on the date of hearing i.e. 14.03.2023, the revisionist did not appear and the case proceeded ex-parte against him. Thereafter, evidence was given. It is not only one date when the revisionist was not absent. After 14.03.2023, next date fixed was 11.04.2023, thereafter, the date fixed in the matter was 20.05.2023, 14.06.2023 and 17.07.2023. On 18.08.2023, the arguments were heard in the case and thereafter, judgment was delivered. T