Nafeez Ahmad vs Smt. Sahnaz Khatun

Prafulla C. Pant, J.—Heard.

This revision is directed against the order dated 10.05.2011, passed by Principal Judge, Family Court, Dehradun, rejecting the application of the revisionist moved u/s 126(2) of Cr.P.C.

Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit on record.

Brief facts of the case are that revisionist Nafeez Ahmad (a carpenter) got married to Sahnaz Khatun on 11.05.2003, in Dehradun. An application was moved by the respondent Sahnaz Khatun, with the pleading that the revisionist has sufficient means to maintain her, and she is unable to maintain herself. She pleaded that she was ousted from her husband''s house in the year 2005. She further pleaded that her husband (present revisionist) was employed in Saudi-Arabia and earning Rs. 20,000/- per month. With the above averments, the respondent claimed maintenance u/s 125 of Cr.P.C. It appears that the notices were not served on the revisionist, as he was in Saudi-Arabia, and the service was treated sufficient by publication of notice in the newspaper. The case proceeded exparte, and vide order dated 15.11.2007, Principal Judge, Family Court, Dehradun, disposed of the application u/s 125 of Cr.P.C., and directed the husband (present revisionist) to pay maintenance @ Rs. 2,500/- per month from the date of application, to his wife.

Later, Nafeez Ahmad (present revisionist) returned from Saudi-Arabia and moved an application u/s 126(2) of Cr.P.C., and sought setting aside of the exparte order. He pleaded that he had no notice of the case. He further pleaded that he has divorced his wife (present respondent). After hearing the parties, vide order dated 10.05.2011, the application of the revisionist was rejected by the trial court as barred by the time.

Learned counsel for the revisionist argued that admittedly, the revisionist was living in Saudi-Arabia, no address of Saudi Arabia was mentioned in the application. In the circumstances, publication of notices in India, cannot be said to be a sufficient service on the revisionist. It is also pointed out that though the trial court has mentioned that on one of the dates, the revisionist was represented through his counsel and thereafter abstained, it is argued that there is no vakalatnama of any counsel on the record, who was directed to represent on behalf of the present revisionist.

In the above circumstances, this Court is of the view that the order dated 10.05.2011, passed by the trial court is erroneous in law and liable to be set aside.

Accordingly, the revision is allowed. The order dated 10.05.2011, passed on application 3A in Case No. 374 of 2008, is hereby set aside. The trial court is directed to decide the application afresh. It is further directed that meanwhile, the revisionist shall pay interim maintenance @ ` 2000/- per month to respondent Sahnaz Khatun from the date of application moved u/s 125 of Cr.P.C. The amount already paid by the revisionist, shall be adjusted towards the interim maintenance directed to be paid @ ` 2000/- per month to the respondent.