Order on Board

13-01-2021 Heard.

1. By this Criminal Revision, the petitioner has challenged the order dated

07.01.2020 passed in M.J.C. No.140 of 2019, by the Additional Principal Judge, Family Court, Bilaspur, District- Bilaspur, C.G. dismissing the application filed under Section 126(2) of Cr.P.C.

2. Learned counsel for the petitioner submitted that the respondent filed an application under Section 125 of Cr.P.C. which was registered as M.J.C. No.249 of 2017. The application was disposed off by the learned Family Court vide order dated 25.09.2017, in which the applicant although filed reply but the rest of the proceeding was taken ex-parte against him and the order has been passed against this applicant for payment of maintenance of Rs.10,000/- per month to the respondent. The order dated 25.09.2017 was challenged in Criminal Revision no.164 of 2018, the Co-ordinate Bench of this High Court vide order dated 31.07.2018 disposed off the revision petition by dismissing it. The applicant then filed a Review Petition No.49 of 2019, which was withdrawn on 12.03.2019 and liberty was granted to file appropriate application before the appropriate forum.

3. On the basis of the liberty granted by the High Court in order dated

12.03.2019 in revision No.49 of 2019, the application under Section 126(2) of Cr.P.C. was filed before the learned Family Court praying to set aside the ex-parte proceeding against the applicant which has been dismissed arbitrarily without giving consideration on the ground raised in the petition. Prayer has been made to set aside the impugned order and grant relief to the petitioner.

4. Learned counsel for the respondent has opposed the petition and the submissions made by the petitioner side.

5. Whenever any ex-parte order is passed under Section 125 of Cr.P.C.

against the non-applicant/husband, the non-applicant has remedies available to him under the provisions of the Cr.P.C., firstly to file an application under Section 126(2) of Cr.P.C. making a prayer to the Court itself which has passed the ex-parte order for setting aside the same and secondly he may chose to file a revision against the order granting maintenance before the Court having revisional jurisdiction. In the case of S.Bhupinder Singh Makkar Vs. Smt. Narinder Kaur & Ors. reported in 1990 Cri.L.J. 2265 Delhi. The Delhi High Court has held in paragraph 10:-

10.“In Biswanath Kabi v. Susama Dei, (1988) 1 All Cr.L.R. 692, a single Judge of Orissa High Court had clearly laid down, in my view, rightly that it is not mandatory for the aggrieved person to move an application before the Magistrate concerned under Section 126 of the Code for setting aside of the ex-parte order and such an aggrieved person can move the High Court by filing a revision. It was opined that nowhere it has been provided in the Code that unless the husband takes recourse to first remedy the second remedy is not available to him according to law. It was observed that there may be cases in which after an ex- parte decree is passed against a husband he may not like to move for setting aside an ex-parte order but may invoke the jurisdiction of the revisional court itself. It will depend on the facts of each case in order to decide whether revisional power of the court should be exercised in a particular case or not, but a revision petition cannot be dismissed at the threshold that the aggrieved person must take resort first to remedy provided in Section 126 of the Code. It is not necessary to refer to two other judgments brought to my notice by the learned counsel for respondents 1 & 2 of other High Courts wherein some view has been taken as in the case of State of Mysore v. Ghousuddin (1972 Cri LJ 808) (supra) because in those judgments also reasons which have been given by me and also by a single Judge of Orissa High Court have not been taken note of.”

6. Further in the case of Balan Nair vs Bhavani Amma Valsalamma and other. reported in A.I.R. 1987 Kerala 110 (F.B.), the Full Bench of Keral