Arvind Kishore @APPELLANT@Hash Smt. Neha Mathur

This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner essentially being aggrieved with the order dated 18.03.2017

passed by the Family Court No.2, Bikaner (hereinafter to be referred as the ‘trial court’) in Criminal Regular Case No.18/2016, whereby while

deciding the application under Section 125 Cr.P.C., it has directed the petitioner to pay monthly maintenance to the respondents to the tune of

Rs.1,20,000/-

It is noticed that the order dated 18.03.2017 has been passed by the trial court ex-parte against the petitioner while observing that he did not appear

before it despite service of notice.

The petitioner has also challenged the order dated 16.09.2017 passed by the trial court, whereby his applications filed through Advocate under

Sections 126 read with Section 127 (2) Cr.P.C. and under Section 13 of the Family Court Act have been dismissed and the prayer of the petitioner for

setting aside exparte order dated 18.03.2017 and allowing him to represent through Advocate has also been dismissed.

Learned counsel for the petitioner has submitted that as a matter of fact, the petitioner was serving as a Doctor in U.S.A. at the time when the notices

of the proceedings under Section 125 Cr.P.C. were issued. It is submitted that the said notices were never served upon the petitioner but were served

upon his father, who is residing at Jaipur. Learned counsel for the petitioner has submitted that every person has a right of hearing in any proceedings

against him, however, in the present case, the trial court has not accorded any opportunity of hearing to the petitioner and has illegally passed the ex-

parte impugned order.

Learned counsel for the petitioner has further submitted that as a matter of fact, respondent No.1 is an Engineer and working in a private firm and she

is earning handsome amount by which she can maintain herself. It is also submitted that respondent No.1 is also acting in the movies and from this

also, she is earning handsome amount.

Learned counsel for the petitioner has submitted that the trial court without taking into consideration this aspect of the matter has illegally passed the

impugned orders without providing opportunity of hearing to the petitioner.

Learned counsel for the petitioner has therefore prayed that the impugned orders dated 18.03.2017 and 16.09.2017 passed by the trial court be set

aside and the matter be remanded to the trial court for deciding afresh after providing opportunity of hearing to the petitioner.

Per contra, learned counsel for the respondents has opposed this criminal misc. petition and argued that though the petitoner was having knowledge

about the pendency of the proceedings under Section 125 Cr.P.C., but he deliberately did not appear before the trial court, therefore, there is no

illegality in the impugned order dated 18.03.2017. It is also argued that as the petitioner himself had not presented applications under Section 126 read

with Section 127(2) Cr.P.C. and Section 13 of the Family Court Act, hence, the trial court has rightly rejected the applications vide order dated

16.09.2017.

Learned counsel for the respondents has also argued that as a matter of fact, till date, around Rs.40 lacs regarding maintenance is due against the

petitioner and without paying the same he has approached this Court through power of attorney, therefore, this criminal misc. petition is not at all

maintainable and liable to be dismissed.

Having heard the learned counsel for the parties and having gone through the impugned orders, this Court is of the opinion that it is not in dispute that

at the time when the notices under Section 125 Cr.P.C. were issued to the petitioner by the trial court, he was in U.S.A. and notices upon him were

not served personally. Even at the time of passing of order dated 18.03.2017 also, the petitioner was in U.S.A. Similarly, on 16.06.2017, when the

applications under Sections 126 read with Section 127(2) and Section 13 of the Family Court Act are decided, the petitioner was not in India.

It is settled that if a person justifies his absence in any proceedings before a Court satisfactorily, opportunity of hearing should be provided to him or

her before passing any adverse order against him or her.

As observed earlier, as the petitioner was serving in the U.S.A. at the relevant time when the impugned orders were passed against him, and,

therefore, no opportunity of hearing was provided to him. Notices of the proceedings under Section 125(2) Cr.P.C. were not served upon him and the

same were served upon his father and in the given circumstances, it cannot be said that service of notices upon him was proper.

In such circumstances, this criminal misc. petition is disposed of with the following directions:-

The impugned orders dated 18.03.2017 and 16.09.2017 are setaside subject to the condition that the petitioner will make a payment of Rs.10 lacs

against the arrears of maintenance to the respondents either by depositing the same before the trial court or by delivering a demand draft in the name

of the respondent No.1 on or before 16.05.2018.

If the petitioner deposits the amount of Rs.10 lacs with the trialcourt, the trial court shall disburse the same to the respondents upon moving an

appropriate application.

The trial court shall decide the application filed on behalf of therespondents under Section 125 Cr.P.C. afresh after providing opportunity of hearing

to the petitioner. It is made clear that the trial court shall decide the application under Section 125 Cr.P.C. afresh without being influenced by the

observations made in the orders dated 18.03.2017 and 16.09.2017 expeditiously, preferably by 31.08.2018.

The petitioner and the respondents are directed to co-operatewith the proceedings and are also directed not to seek unnecessary adjournments in

the matter.

The petitioner is also free to move application under Section 13 of the Family Court Act, 1984 with a prayer to obtain service of lawyer. If any such

application is filed on behalf of the petitioner, the trial court shall decide the same while taking into consideration the law laid down by this Court in

Civil Misc. Appeal

No.503/2003 decided on 19.05.2004 titled as Laxmi Kanwar vs. Laxman Singh.

Needless to say, the amount of Rs.25 lacs (Rs.15 lacs deposited by the petitioner pursuant to the directions given by this Court on 14.02.2018 and

Rs.10 lacs which the petitioner is going to deposit pursuant to this order) will subject to the adjustment pursuant to the fresh order order passed by the

trial court on the application under Section 125 Cr.P.C.

Stay petition also stands disposed of.a