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IN THE HIGH COURT OF ORISSA AT CUTTACK

RPFAM No. 91 of 2018

Satish Agrawal

..&

Petitioner

Mr. Samir Kumar Mishra, Advocate

-versus-

Sudha Agarwal and another

&.

Opp. Parties

Mrs. Supriya Patra, Advocate

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

07.03.2022

12.

1.

This matter is taken up through Hybrid mode.

2.

The Petitioner in this RPFAM seeks to assail the order

dated 28^th July, 2017 (Annexure-6) passed by learned Judge,

Family Court, Sambalpur in CMC No.54 of 2014, whereby a

petition filed by the Petitioner under Section 126(2) Cr.P.C. for

setting aside the ex parte order dated 23^rd July, 2014

(Annexure-3) passed in CMC No.473 of 2012, was dismissed.

3.

It is submitted by Mr. Mishra, learned counsel that the

Petitioner is the husband of Opposite Party No.1 and Opposite

Party No.2 has been born out of their wedlock. As dissensions

arose between the parties they started living separately.

Subsequently, the Opposite Party No.1 filed CMC No.473 of

2012 under Section 125 Cr.P.C. Although the Petitioner was

diligently participating in the proceeding, but due to personal

difficulty he could not attend on some of the dates to which the

case was posted before the learned Family Court, for which he

was set ex parte and an order was passed directing him to pay

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maintenance of Rs.20,000/- per month to the Opposite Party

No.1 and Rs.10,000/- per month to Opposite Party No.2. The

Petitioner thereafter filed CMC No.54 of 2014 to set aside the

ex parte order granting maintenance to Opposite Parties, which

was rejected vide order dated 28^th July, 2017 (Annexure-6).

Hence, this RPFAM has been filed.

3.1

It is his submission that Opposite Party No.1 has in the

meantime joined the Odisha Judicial Service and has sufficient

means to maintain herself and the child. The Petitioner at the

time of filing of the application under Section 125 Cr.P.C.

(CMC No.54 of 2014) was serving in WIPRO and subsequently

he lost that job and now he is earning Rs.25,000/- per month.

As such, it is practically impossible on the part of the Petitioner

to pay maintenance granted in favour of Opposite Parties. He,

however, submits that the Petitioner, if granted an opportunity,

will diligently participate in the criminal proceeding. In that

view of the matter, he prays for setting aside of the impugned

order under Annexure-6 and to grant him an opportunity to

participate in the proceeding under Section 125 Cr.P.C..

4.

Mrs. Patra, learned counsel for Opposite Parties

vehemently objected to the above submission. In course of

hearing, she produces the order sheets in CMC No.473 of 2012.

It is her submission that initially in course of the proceeding,

the Petitioner herein appeared before learned Family Court on

2^nd August, 2013 and filed a petition praying for adjournment to

file show cause. Initially, adjournment was granted to the

Petitioner. But, taking advantage of the same, the Petitioner

sought for repeated adjournments. Since he had already been

granted time on 25^th June, 2013 to 2^nd August, 2013, learned

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Judge, Family Court rejected the petition, but granted

opportunity to the Petitioner to take part in the hearing by filing

show cause on the date fixed. The next date of hearing was

fixed to 5^th August, 2013. However, the Petitioner failed to

appear before the learned Family Court and take part in hearing.

Accordingly, he was set ex parte on 8^th January, 2014.

However, considering his application, the ex parte hearing was

fixed on the said date. Subsequently, on a petition filed by the

Petitioner, the ex parte order was recalled vide order dated 20^th

March, 2014 and the Petitioner was permitted to cross examine

the Opposite Party No.1. But, the Petitioner miserably failed