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29.01.2021

CORAM :- HON’BLE SHRI JUSTICE S.PUJAHARI

CRLREV NO.37 OF 2020

Pankaj Gochhayat.

…….. Petitioner

-Versus-

Nutan Ray.

…….. Opp.party

O R D E R

In the wake of the pandemic Covid-19, the

case was taken up through V.C.

2.

This is an application filed under Section 401

read with Section 397 of Cr.P.C. for setting aside the

judgment dated 16.12.2019 passed by the learned

2^nd Addl. Sessions Judge, Cuttack in Criminal

Appeal No.59 of 2019, whereby the ex-parte

judgment dated 10.08.2017 passed by the learned

J.M.F.C., Cuttack in D.V. Case No.20 of 2016

against the present petitioner has been confirmed.

3.

I have heard the learned counsel for the parties

and perused the impugned judgment and other

relevant papers on record vis-à-vis the grounds

taken by the petitioners.

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4.

In D.V. Case No.20 of 2016, a proceeding

registered under Section 12 of the Protection of

Women from Domestic Violence Act, 2005 (for short

“the PWDV Act”) at the instance of the opposite

party, the learned J.M.F.C. passed an ex-parte order

on 10.08.2017 directing the petitioner to pay to the

opposite

party

maintenance

@Rs.10,000/-

per

month from the date of filing of the case and house

rent @ Rs.5000/- per month from the date of the

order. As observed in the said order, despite notice,

the present petitioner who was arraigned as opposite

party no.1 and other opposite parties in the said

case neither appeared nor filed any show-cause,

resulting in disposal of the case in their absence. As

the petitioner failed to comply with the direction

given as above in the ex-parte judgment, the present

opposite party filed Execution Case No.154 of 2018.

Thereafter, the present petitioner filed Criminal

Appeal No.59 of 2019 before the learned Sessions

Judge, Cuttack challenging the ex-parte judgment

passed in the D.V. case as well as the order for

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execution passed in the Execution proceeding. The

learned 2^nd Addl. Sessions Judge who heard the

appeal upon transfer of the same to his Court,

passed the impugned order dismissing the appeal.

5.

The learned counsel for the petitioner submits,

inter-alia, that both the Courts below failed to

appreciate the fact that there was no proof regarding

service of notice of the D.V. proceeding on the

petitioner and although there has been a Divorce

proceeding initiated at the instance of the present

petitioner in the Judge, Family Court, Cuttack, the

opposite party never disclosed anything about the

D.V. case in the said proceeding. It is further

contended by the learned counsel that when the

petitioner made payments in compliance with the

interim order passed by the learned Sessions Judge

pending disposal of the Criminal Appeal, and the

interim order passed by this Court, his bonafides

should be taken into account, and he should be

afforded an opportunity of contesting the claim of the

opposite party under the PWDV Act.

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5.

The application is resisted by the opposite

party on the ground, inter-alia, that the petitioner

despite being sufficiently noticed of the DV case,

refrained from appearance and contest with a view to

protract the proceeding and also with the intent of

harassing her. It is submitted by the learned counsel

for the opposite party that both the trial Court and