Sandeep Kumar Prasad vs Reena Prasad

Vimla Singh Kapoor, J

The Order under challenge in this revision petition is the one which was passed on 30.08.2014 by learned Family Court, Ambikapur, District Sarguja in Misc.

Criminal Case No. 04/2014 dismissing the application filed by the applicant/husband under Section 126 (2) of the Code of Criminal Procedure for setting aside the ex

parte order dated 17.08.2012 passed by learned Family Court, Ambikapur in Misc. Criminal Case No. 01/2012.

There is no dispute that the non-applicant herein namely Smt. Reena Prasad is the legally wedded wife of applicant Sandeep Kumar Prasad. The parties hereinafter

would be referred to as the wife and husband, for convenience.

The facts leading to the disposal of this revision petition in brief are that having been fed up with the frequent dowry demands, indifferent attitude and the

tortuous act of the husband and his family members, the wife moved an application under Section 125 of the Code of Criminal Procedure (for short the “Codeâ€).

The wife has pleaded in the application under Section 125 of the Code that being an un-employed woman, it is extremely difficult for her to eke out the livelihood

whereas the husband being in the employment of WCL as foreman earns Rs. 40,000/- per month, and therefore, let he be directed to pay a sum of Rs. 10,000/- per

month as maintenance.

The documents and order-sheets of the case go to show that in spite of service of notice on the husband, he did not turn up to appear in the maintenance

proceedings. This non-appearance of the husband made the Family Court proceed ex parte against the husband by order dated 18.07.2012 and then after recording

the evidence of the wife allowed the application under Section 125 of the Code in part vide order dated 17.08.2012 granting monthly maintenance of Rs. 5,000/- in her

favour. Meanwhile, the husband challenged the ex parte order dated 17.08.2012 by way of Criminal Revision No. 740/2012 filed before the High Court on 07.11.2012

and subsequently withdrew the same on 13.11.2013 with liberty to file an application under Section 126 (2) of the Code. Thereafter, on 06.01.2014 the application under

Section 126 (2) of the Code was filed challenging the ex parte order dated 17.08.2012 by taking innumerable grounds of the serious ailment of his father requiring his

constant vigil etc which rendered him incapable of appearing in the Court. Learned Family Court vide order under challenge in this revision dated 30.08.2014 however

rejected the application filed by the husband under Section 126 (2) of the Code by holding that the same was barred by limitation and that he did not even file an

application for condonation of the delay occasioned in filing the application under Section 126 (2) of the Code.

Counsel for the applicant submits that the dismissal of the application under Section 126 (2) of the Code is based on wrong calculation of limitation period. As

regards non filing of application for condonation of delay, she submits that the husband was under the impression that the limitation is to be counted from the date of

order passed by the High Court on 13.11.2013 in Criminal Revision No. 740/2012, and in such a situation if he was under the bona fide wrong assumption, the Family

Court should have given him at least one opportunity to file an application for condonation of delay. Yet another submission on behalf of the husband is that while

considering the application under Section 126 (2) of the Code, learned Family Court should have adopted a liberal approach than dismissing the application on the

ground of limitation.

On the other hand, supporting the order impugned counsel appearing for the wife submits that the limitation to get the ex parte decree set aside, as per Section 123

of the Limitation Act, has to be counted from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the

decree. She submits that in the application under Section 126 (2) of the Code itself the husband has admitted the receipt of notice to appear in the maintenace

proceedings on 18.07.2012 but he could not appear on account of illness of his father, and therefore the limitation is to be counted from the date of ex parte order

dated 17.08.2012 and not from the date of knowledge thereof. Counsel for the wife further submits that the period prescribed for getting the ex parte order set aside in

a maintenance case would start from the date on which it was passed which in this case is 17.08.2012, but the husband filed the application for the said purpose under

Section 126 (2) of the Code on 06.01.2014 i.e. with the delay of more than one and a half year, that too without filing an application for condonation of delay. She

submits that the counting of limitation by the husband from the date on which he withdrew the revision in the High Court i.e. 13.11.2013 is wholly misconceived and

is not permissible under section 123 of the Limitation Act.

Having heard counsel for the parties and perused the material on record this Court has no hesitation to say that in spite of having received the notice for his

appearance before the Family Court on 18.07.2012 the husband did not appear purportedly on the ground of illness of his father and therefore was proceeded ex parte

and then after recording the evidence of the wife and her witnesses an ex parte order was passed on 17.08.2012 granting maintenance of Rs. 5000/- in her favour. The

period prescribed under Section 126 (2) of the Code for moving an application to get an ex parte order passed in a maintenance case set aside is three months from the

date on which it was passed which in this case is 17.08.2012. In other words, the application under Section 126 (2) of the Code was to be filed within three months

from 17.08.2012. However, the husband misconstruing the provision filed the said application on 06.01.2014 i.e. with a delay of over one and a half year. One of his

standpoints that the limitation in this case would start from 13.11.2013 when the revision filed by him in the High Court against the order dated 17.08.2012 was

withdrawn, is not palatable to this Court in the light of the provisions of the Section 126 of the Code as also that of the Limitation Act. Furthermore, the husband did

not even file an application for condonation of delay under Section 5 of the Limitation Act to derive the benefit of Section 14 of it seeking exclusion of the period from

07.11.2012 (when the revision was filed in the High Court) to 13.11.2013 (when it was withdrawn by the husband).

The aforesaid factual and legal aspects of the case and also the judicial pronouncement in the matters of Sneh Gupta v. Devi Saroop and others (2009) 6 SCC 194

and Dipak Chandra Ruhidas Vs. Chandan Kumar Sarkar 2003 Supp(2) SCR 72 referred to by the counsel for the wife, this Court does not see any illegality or

irregularity in the order impugned rejecting the application filed by the husband under Section 126 (2) of the Code warranting any interference in this revision petition.

The same being without any substance is liable to be and is hereby dismissed.