CRL. REV.P. 208/2018 Page 1 of 9

$~

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

%

Reserved on:22.08.2022

Pronounced on: 31.08.2022

+

CRL.REV.P. 208/2018

HEMANT KUMAR

..... Petitioner

Through:

Mr Ravindra Narayan and

Mr

Raghav

Narayan,

Advocates

along

with

petitioner in person.

versus

STATE & ANR.

..... Respondents

Through:

Mr Manoj Pant, APP for State

Mr. S.S. Chaudhary with Mr.

Rakesh Gupta, Advocates for

R-2.

CORAM:

HON'BLE MS. JUSTICE SWARANA KANTA SHARMA

JUDGMENT

SWARANA KANTA SHARMA, J.

1.

The present petition has been filed under Section 401 of the Code

of Criminal Procedure, 1973 (“Cr.P.C.”) praying for setting aside

impugned order dated 17.11.2017 passed by the learned Additional

Principal Judge (APJ), Family Courts, Shahdara, Delhi and seeking

issuance of directions to the learned Judge, Family Court to pass orders

afresh on interim maintenance on merits of the case.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003345

CRL. REV.P. 208/2018 Page 2 of 9

2.

The question that arises for consideration is that in case an order

is passed setting aside ex-parte proceedings, whether relief of granting

ex-parte interim maintenance vide the same order, will also be

automatically set aside or not.

3.

The brief facts of the case are that the respondent No.2/wife

herein had filed an application seeking maintenance from the

petitioner/husband herein on 03.06.2014.

4.

On the date fixed for appearance of the petitioner/husband i.e.

01.12.2014, since he did not appear despite service of notice, he was

proceeded ex-parte. On the said date, the following order was passed by

the learned Principal Judge-Family Courts which reads as under:

Put up for PE on 26.09.2015…”

5.

Pursuant

to

the

same,

the

learned

counsel

for

the

respondent/husband (petitioner herein) had moved an application under

Section 126(2) Cr.P.C. for setting aside ex-parte order. The ex-parte

order was set aside by the learned Principal Judge, Family Courts on

03.10.2016.

6.

Thereafter, the case was transferred on administrative grounds to

another Family Court, Shahdara District, Karkardooma Courts, Delhi.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003345

CRL. REV.P. 208/2018 Page 3 of 9

The impugned order before this court was passed by the learned Judge,

Family Court (transferee Court). In the impugned order dated

17.11.2017 the learned Judge held that there was no need to hear

arguments on application for interim maintenance as though an order

had been passed setting aside ex-parte proceedings dated 01.12.2014,

the order granting maintenance on the same date vide the same order

were not specifically set aside.

7.

The learned Judge-Family Court held as under:

requirement to pass any fresh order…”

8.

Aggrieved by this order the present petition was filed praying for

setting it aside.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003345

CRL. REV.P. 208/2018 Page 4 of 9

9.

Counsel for the petitioner argued that since the entire ex-parte

order dated 01.12.2014was set aside, it included setting aside of the ex-

parte order granting interim maintenance too as it was part of order

dated 01.12.2014 itself. He, therefore, argued that the learned Judge-

Family Court was required to hear arguments afresh for grant of interim

maintenance since the petitioner herein was allowed to join proceedings

and file written statement as well as affidavit of income and

expenditure.

10.

Counsel for the respondent No.2/wife herein however argues that

there is no illegality or infirmity in the said order since it has been

rightly held by the learned Trial Court that only order regarding ex-

parte proceedings was set aside and there is no specific order setting

aside order granting interim maintenance.

11.

After hearing arguments and going through the case file, this

Court is of the opinion