K.M. Veerendra vs Manjula K.

Aravind Kumar, J.—This revision petition has been filed by husband challenging the order dated 10.02.2014 passed in Crl. Misc. No. 362/2013 by the Family Court, Mysore, whereunder the petition filed under Section 125 of Code of Criminal Procedure, 1973, (for short ''the Cr.P.C) claiming maintenance of Rs. 15,000/- by the respondent - wife came to be allowed in part and revision petitioner has been directed to pay maintenance of Rs. 4,000/- per month from the date of petition with costs of Rs. 1,000/-

By consent of learned advocates appearing for both parties, viz., Smt. Poornima M., learned counsel for petitioner and Sri V. Rangaramu, learned counsel for respondent, I have heard this revision petition for final disposal.

The order under challenge is an ex-parte order viz., despite service of notice, respondent before the Family Court viz., the revision petitioner did not chose to appear and contest the matter and as such placing him ex-parte evidence of the petitioner-wife came to be recorded. She got marked 5 documents as Exs. P1 to P5. After considering the evidence tendered by petitioner-wife, petition came to be allowed in part and respondent - husband was directed to pay maintenance as noted hereunder.

It is not in dispute that both parties are litigating in various forums and petition in question came to be filed under Section 125 of Cr.P.C. by the wife seeking maintenance from husband. It has been contended by the revision petitioner (husband) that without giving him an opportunity, order in question has been passed and when the matter was posted before Family Court for taking fresh steps, Family Court could not have placed him ex-parte and the conclusion arrived at by the Trial Court in this regard viz., that service of notice is sufficient, is bad in law particularly, when the previous Presiding Officer had ordered for fresh steps on 29.10.2013 and had adjourned the matter to 4.12.2013 and subsequent to the said order no steps had been taken by petitioner - wife to issue fresh notice, and as such placing the revision petitioner ex-parte by order dated 4.12.2013 by the Family Court is erroneous and liable to be set aside.

Per contra, learned counsel for respondent would defend the order in question contending that Trial Court has rightly placed the revision petitioner ex-parte, since he knew about said proceedings and did not chose to appear and contest the matter.

The fact that order sheet of proceedings in question indicate that fresh steps had been ordered on 29.10.2013 and matter had been adjourned to 4.12.2013 is an undisputed fact. No material whatsoever has been placed before this Court by the respondent - wife to establish that subsequent to said order fresh steps had been taken. In the absence of such material, Family Court could not have proceeded to place revision petitioner ex-parte on 4.12.2013 on which date respondent - wife had to take fresh steps to get service of notice effected on revision petitioner. On this short ground itself, order of the Trial Court cannot be sustained, it is liable to be dismissed and matter requires to be remitted back to Family Court for fresh adjudication.

The incidental question that would arise in this revision petition is ''whether petitioner is to be put on terms or not''? In view of the fact that service of notice before Family Court is held not proper by this Court and the matter is now being remitted back to the Family Court, this Court is of the view, that ends of justice would be met, if petitioner is directed to deposit arrears of maintenance before the Family Court, Mysore, i.e., from 20.7.2013 (date of filing petition under Section 125 of Cr.P.C. before Family Court) till date, i.e., 31.10.2014 and continue to pay maintenance to respondent (wife) herein during pendency of proceedings before Family Court @ Rs. 4,000/- per month as maintenance, which would be subject to final result.

Accordingly, I proceed to pass following order:-

"(i) Appeal is hereby allowed.

(ii) Order passed by Family Court, Mysore, in Crl. Misc. 362/2013 dated 10.02.2014 is hereby set aside and matter is remitted back to the Family Court, Mysore, for being adjudicated afresh and on merits.

(iii) Revision petitioner would be at liberty to file statement of objections to the main petition within 10 days from the date of appearance and cross examine- P.W. 1 and also tender his evidence, if any.

(iv) Family Court, Mysore shall dispose off the matter on merits at any rate within six months from the date of filing of the statement of objections.

(v) Parties shall appear before Family Court, Mysore, on 20.11.2014 without waiting for any further notice and Family Court, Mysore, is not required to issue any notice to the parties.

(vi) Revision petitioner shall deposit arrears of maintenance on said date (i.e., 20.11.2014) without fail and continue to pay a sum of Rs. 4,000/- as ordered till the disposal of the petition on merits and contentions of both parties are left open."

The Family Court would be at liberty to pass orders on the merits of the matter and in accordance with law, without being influenced by any observations made in this order.

No costs.