Rajeev Kumar vs State of U.P. and Others

S.C. Agarwal, J.—Heard learned Counsel for the petitioner, learned A.G.A. for the State and perused the material available on record.

No notice is issued to private respondents in view of the order proposed to be passed today, however, liberty is reserved for private respondents to apply for variation or modification of this order if they feel so aggrieved.

Maintenance Smt. Padma and Ors. v. Rajeev Kumar under case No. 1482 of 2007 Section 125 Code of Criminal Procedure was decided on 5.11.2009 by Judicial Magistrate, Pilibhit and the petitioner was directed to pay maintenance allowance at the rate of Rs. 1500/- per month to his wife (respondent No. 2) and at the rate of Rs. 500/- per month each to his children (respondents No. 3, 4 & 5) with effect from the date of application i.e. 24.9.2007. The arrears were directed to be paid in installments of Rs. 1000/- per month. The petitioner preferred a revision being criminal revisionist No. 211 of 2009, which was dismissed by judgment and order dated 29.7.2010 passed by Additional Sessions Judge, Court No. 1, Pilibhit. Both the aforesaid orders are under challenge in this writ petition.

Learned Counsel for the petitioner submitted that a perusal of the impugned order passed by the Magistrate shows that opportunity of defence was closed by the Magistrate due to non-appearance of the petitioner and one opportunity of hearing should be granted to him.

No doubt, the impugned order passed by the Magistrate is an exparte order. It was open to the petitioner to move an application before the Magistrate for setting aside the ex-parte order.

Learned Counsel for the petitioner submits that such an application was moved before the Magistrate, but was dismissed.

If that be so, the proper remedy was to challenge the order dismissing the application for setting aside the ex-parte order, which has not been availed by the petitioner.

Learned Magistrate has found that the respondents No. 2 to 5 are unable to maintain themselves and petitioner has failed to provide them maintenance. This finding is based on the evidence on record and cannot be said to be perverse. The amount awarded by the Magistrate as maintenance allowance to respondents No. 2 to 5 cannot be said to be excessive in any manner. I do not find any good ground to interfere in the impugned order.

The writ petition is devoid of merit and is accordingly dismissed.