IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Revision No. 279 of 2022

Ajay Sharma

...... Revisionist

Vs.

State of Uttarakhand and Another

..... Respondents

Mr. Vivek Shukla, Advocates for the revisionist.

Mr. Lalit Miglani, A.G.A. assisted by Ms. Sonika Khulbe, Brief Holder for

the State of Uttarakhand.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to

the order dated 28.04.2022, passed in Criminal Case No.

32 of 2022, Ajay Sharma Vs. Archana Sharma, by the

Family Court, District-Haridwar. By it, an ex-parte order

dated 10.09.2021, passed under Section 125 of the Code

of Criminal Procedure, 1973 (“the Code”) has been set

aside subject to payment of Rs. 1,50,000/-.

2.

Heard learned counsel for the revisionist

and perused the record.

3.

The

record

reveals

that

the

respondent no. 2 (“the applicant”), the wife of the

revisionist, filed an application under Section 125 of the

Code seeking maintenance from the revisionist. The

revisionist filed his objections but subsequently, he

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remained absent and the case proceeded ex-parte

against him on 16.08.2021. By the impugned judgment

and order, on 10.09.2021, the application under Section

125 of the Code filed by the applicant has been allowed

and the revisionist was directed to pay Rs. 30,000/- per

month as maintenance to the applicant. It appears that

subsequently the revisionist moved an application under

Section 126(2) of the Code for setting aside the ex-parte

order dated 10.09.2021.

3.

Having

considered

all

the

attending

circumstances, the court, by the impugned order dated

28.04.2022, allowed the application under Section

126(2) of the Code, filed by the revisionist, subject to

payment of Rs. 1,50,000/- to the applicant. Aggrieved by

it, the revisionist is before this Court.

4.

Learned counsel for the revisionist would

submit that the revisionist works in a ship; he works for

6 months; the amount, which has been directed to be

paid, is excessive; the revisionist has responsibility to

maintain his mother who is old aged and his son,

therefore the amount needs to be reduced.

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5.

During the course of argument, it is

admitted that the salary of the revisionist is Rs.

50,000/- per month. In fact, in the ex-parte judgement

and order dated 10.09.2021, while making reference to

the objections filed by the revisionist, it is recorded that

the salary of the revisionist is Rs. 50,000/- per month.

6.

Section 126 of the Code provides for the

procedure to hear an application under Section 125 of

the Code. According to sub-Section 2 of it, in cases

where the opposite party avoids its presence in the

court, the Magistrate may proceed to hear and determine

the case ex-parte. Such ex-parte order may be set aside

for good cause shown on an application made within

three months from the date thereof subject to such terms

including terms at to payment of costs. Section 126 (2)

of the Code is as hereunder:

Section 126(2) of the Code of Criminal Procedure, 1973:

2) All evidence in such proceedings shall be taken in

the presence of the person against whom an order for

payment of maintenance is proposed to be made, or,

when his personal attendance is dispensed with, in

the presence of his pleader, and shall be recorded in

the manner prescribed for summons-cases: Provided

that if the Magistrate is satisfied that the person

against whom an order for payment of maintenance is

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proposed to be made is wilfully avoiding service, or

wilfully neglecting to attend the Court, the Magistrate

may proceed to hear and determine the case ex parte

and any order so made may be set aside for good

cause shown on an application made within three

months from the date thereof subject to such terms

including terms as to payment of costs to the opposite

party as the Magistrate may think just