Kalbe Mehndi vs State of U.P.and another

Shiv Charan, J.—Heard learned Counsel for the revisionist and perused the impugned judgment and order dated 21.2.2008 passed by Principal Judge Family Court, Meerut in Misc. Case No. 216 o2007 (Kalbe Mehndi v. Tasneem Zehra). By this order the learned Judge dismissed the application of the revisionist for restoration of the Case No. 150 of 2004, under section 125. Cr.P.C.

The learned Counsel for the revisionist argued that a petition under section 125 Cr.P.C. was instituted by the opposite party for maintenance and it was numbered as 150 of 2004 (Tasneem Zehra v. Kalbe Mehndi). That no notice was served on the revisionist of this petition under section 125, Cr.P.C. He also argued that he has filed prior to copy of the order sheet of Case No. 150 of 2004 and by the order dated 1.4.2006, the Family Judge presumed sufficient service on the revisionist by a fixation of the notice, as the revisionist refused to receive the notice. He argued that the fact is that he received no notice. He never refused to process server to receive the notice. And ultimately exparte order of maintenance was passed or, 25.5.2007. That after knowing this fact without wasting any time he moved the application for setting aside the exparte order and the restoration of the case. He also argued that the opposite party concealing the material fact from the Court in view of the Annexure1 the revisionist divorced the opposite party on 1.5.2006. The certificate was issued to this effect by Moulana Ali Ibnul Hasan Banqri and that he is competent to issue the certificate of divorce. That after divorce the revisionist is not bound and liable to pay the maintenance. Rather the case must be covered under the provision of Muslim Women (Protection of Rights on Divorce) Act, 1986. And he cited the judgment of Hon''ble Apex Court in Iqbal Bano v. State of U.P. and others. 2007 (58) ACC 824 (SC) = 2007 (55) AIC 4 (SC). He also argued that in view of the judgment of this Court also the petition under section 125 Cr.P.C. must be decided on merits.

A.G.A. opposed the argument of learned Counsel for the revisionist.

At this stage it will not be justified to make any comments on the merit of the case. It is for the Trial Court to decide whether the revisionist divorced the opposite party as alleged. But it is a fact that the application under section 125 Cr.P.C. was decided exparte and the service was presumed sufficient by fixation of notice as the revisionist refused. It is not a case in which revisionist was served personally and thereafter he remained absent to contest the case. And the application of restoration was moved. But the learned Judge Family Court arrived at the conclusion that the ground for restoration is not sufficient. I have also perused the judgment of this Court in Sri Kant v. Judicial Magistrate III Saharanpur and others 1999 (38) ACC 306 (Alld.)And in view of this judgment also application under section 125 Cr.P.C. must be decided on merits. But it is also a fact that petition was instituted in the year 2004. Where as she was divorced according to the revisionist himself in the year 2006. And according to contention of the revisionist himself the opposite party is entitled for maintenance for this period prior to the divorce. Although it is a fact to be decided by the Trial Court but reference has been made to this fact only due to reason that according to contention of the revisionist himself opposite parity was divorced in the year 2006 on 1.5.2006.

It has also been averred by the learned Counsel for the revisionist that the revisionist belong to a labour class and the Trial Court presumed the income of the revisionist on the basis of conjecture. That the income of the revisionist is too meagre and he is not in a position to pay the maintenance of Rs. 2000/ per month. Although this fact is to be decided by the Trial Court. However till the matter is decided by the Family Court I think it proper that the amount be reduced to Rs. 1000/till the application is disposed of finally within stipulated period.

Considering all the facts and circumstances, of the case I am of the opinion that the petition under section 125 Cr.P.C. was decided ex parte and the service to the revisionist was not personal. Rather service was presumed on the basis of fixation of notice on refusal. It appears that the learned Judge has not considered all the facts and circumstances of the case properly while deciding the application for restoration. There was sufficient reason. Such circumstance to set aside the exparte judgment. However in the interest of justice and to safeguard the interest of the parties it is proper that the case must be decided on merits. Under these circumstances, the revision deserves to be allowed and the exparte order dated 25.5.2007 deserves to be set aside. And the matter is to be remanded to the Judge Family Court for deciding afresh on merit after affording an opportunity to both the parties to produce evidence and W.S. also.

The revision is allowed. The order dated 25.5.2007 is set aside and the Trial Court is directed to decide the application under section 125 Cr.P.C. Case No. 150 of 2004 (Tasneem Zehra v. Kalbe Mehndi) within a period of six months from the date on which the copy of this order is produced in the Court and both the parties shall cooperate in quick disposal of the case. It is also provided that the revisionist shall pay the maintenance at the rate of Rs. 1000/per month or he may deposit in the Court from the date of application. This maintenance is on interim maintenance.

Revision Allowed.