An ex-parte decree of restitution of conjugal rights does not bar a wife from claiming maintenance under Section 125 Cr.P.C., especially if justified by evidence of cruelty or neglect.

JUDGMENT

SWARANA KANTA SHARMA, J.

1. The present petition has been filed under Section 397 read with Section 402 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter „Cr.P.C.‟) for setting aside impugned judgment dated 09.02.2018 passed by the Learned Judge, Family Court, Shahdara District, Karkardooma Courts, New Delhi in CC no. 364/2017 whereby the grant of maintenance under Section 125 Cr.P.C. to the Petitioner herein was declined on the ground that Respondent had obtained a decree for restitution of conjugal rights in his favour. The question for consideration before this Court is:

"Whether the wife against whom decree for restitution of conjugal rights has been passed, is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure?"

FACTUAL BACKGROUND

2. The marriage between the parties was solemnized on 13.05.1993, and a daughter and a son were born out of their wedlock. The Petitioner/wife filed a petition under Section 125 Cr.P.C. against the Respondent for grant of maintenance for herself and children on 15.04.2009. Respondent was served, however he did not appear before the learned Trial Court on 01.10.2022 despite service of summons, therefore he was proceeded ex-parte by following order:- 01.10.2012

Present Petitioner with counsel Sh. Sanjeev Kumar from

DLSA

Respondent absent.

Respondent is not present despite service. Be awaited. Put up at 12.30 pm.

At 12.30 pm

Present Petitioner with counsel.

Respondent absent.

Respondent is not appeared despite repeated calls. In view of the same, respondent is proceeded exparte.

Put up for exparte PE on 30.11.2012.

3. The matter was adjourned for recording ex-parte evidence of the petitioner to 30.11.2012. On 30.11.2012, the respondent alongwith his counsel appeared before the Trial Court and filed application under section 126 Cr.P.C. Thereafter the matter was adjourned and was listed for argument on application under Section 126 Cr.P.C to 04.03.2013. On 04.03.2013, respondent did not appear to address the arguments for setting aside the ex-parte order, however he was allowed to join the proceedings by way of the following order:-

Present Petitioner in person.

Sh. Jia Lal, father of Munna Lal.

Exemption application along with medical certificate stating that respondent is not well. In view of the submission made, exemption is allowed for today only. It is pertinent to mention here that respondent has already been proceeded exparte in the present case. However, he has every right to join the proceedings of further dates. He has also moved an application u/s 126 Cr.P.C. Reply to the application is not filed. Put up for reply and arguments on application for 21.5.2013.

Thereafter, respondent did not appear again to participate in the proceedings and only appeared on 14.08.2013 for filing of certified copy of a judgment.

4. Evidence by way of Affidavit was tendered by the Petitioner on 27.01.2014. Further, despite notice issued on 05.09.2014, the Respondent did not appear before the Trial Court on 27.01.2015.