Sudhir Sharma vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

A very peculiar fact and situation, which has emerged for consideration in the present revision, is firstly, this Court is called upon to answer the objection taken by the Registry reporting thereof that the revision preferred by the revisionist aggrieved against the order dated 27.05.2015 by virtue of which the Family Court has granted a maintenance of a sum of Rs.10,000/- to respondent no. 2, was barred by a delay of 1390 days, thereafter passing of the order dated 27.05.2015 the revisionist had filed an application under Section 126(2) on 28.05.2015 seeking recall of the ex parte order passed in Criminal Case No. 176 of 2014 'Soniya Sharma vs. Sri Sudhir Sharma' on 27.05.2015. It was this application, which was filed by revisionist invoking the provisions of Section 126(2) of the Code of Criminal Procedure, which contemplates filing of an application for recall of an order passed under Section 125 of Cr.P.C., within a period of three months from the date of passing of the order sought to be recalled. The records reveal that the principal application, which was preferred by the revisionist for recalling the ex parte order was well within time as specified under Section 126(2), as having been filed on 28.05.2015 i.e. within couple of days from the date of passing of the ex parte order of maintenance.

The application thus preferred by the revisionist being Miscellaneous Application No. 170 of 2015 was dismissed for want of prosecution on 13.10.2017, for which the revisionist has filed yet another application seeking recall of the order dismissing his Application No. 70 of 2015 under Section 126(2) for want of prosecution, which was numbered as Miscellaneous Case No. 288A of 2017, has been rejected by the Family Court, by the impugned order dated 31.05.2019. It is these orders, which has been rendered on 27.05.2015, i.e. principal order of granting of ex parte maintenance in Criminal Case No. 176 of 2014 and the ultimate orders dated 13.10.2017 and 31.05.2019, which was passed in Miscellaneous Case No. 288A/2017 'Sudhir Sharma vs. Soniya Sharma, whereby, the petitioner's application seeking to recall the order dated 13.10.2017 rejecting his application under Section 126(2) for want of prosecution was rejected by the final order dated 31.05.2019.

In the revision in question the revisionist has challenged all the orders passed by the courts orders, i.e. 27.05.2015, 13.10.2017 and ultimately the final order dated 31.05.2019, by virtue of which his Miscellaneous Application No. 288A of 2017, was rejected. Since in the revision in question all the orders have been put to challenge, the dismissal of the recall application on 31.05.2019, would provided the continuity to the proceedings seeking recall of the ex parte order dated 27.05.2015, because the initial application preferred by the revisionist seeking recall of the ex parte order was well within time and thereafter as a consequence of its rejection on 13.10.2017. The continuity of the proceedings emanating from the order dated 27.05.2015 was maintained by filing recall application, coupled with the fact that since in the revision in question all the orders passed by the Court below, which have been put to challenge, this Court is of the view that the revision should be treated to have been filed within time and the objection of delay as raised by the Registry computing the limitation from the date of the passing of the order, i.e. 27.05.2015 may not be a correct view for determining the limitation for preferring the revision, and even otherwise the period during which the revisionist was engage in pursuing his recall application has to adjusted and treated as pursuing the remedy available to him under law.

Under these circumstances, the objection as pointed out by the Registry is over ruled. The revision is treated to have been filed within time.

Admit the revision.

Issue notice to respondent no. 2, for which steps may be taken within a week.

The argument of the learned counsel for the revisionist is to the effect that in terms of the decree passed under Section 13B of the Hindu Marriage Act, the respondent no. 2 has received the entire financial benefits, which was directed to be remitted to her by the revisionist along with a flat, which has been described as Flat No. 416, Shakti Khand-4, Indirapuram. Relevant portion of the judgment is quoted hereunder:

"याची सं. 2 ने याची सं. 1 से अपना समस्त स्त्रीधन व सामान आदि एक तथा भविष्य कालीन भरण पोषण का खर्चा प्राप्त कर लिया है तथा अब किसी भी पक्षकार का एक दूसरे पर कोई लेन देन बाकी नहीं है। याची सं. 1 ने याची सं. 2 को एक आवासीय फलैट सं0 416 शक्तिखंड-4 इंदिरापुरम में रहने के लिए दे दिया है। दोनों पक्षों ने अपने अपने सशपथ बयानों में भी स्पष्ट रूप से कहा गया है कि वे दि0 4.2.2012 से अलग अलग रह रहे हैं और तब से उनके मध्य कोई शारीरिक संबंध स्थापित नहीं हुए हैं तथा अब उनके मध्य वैचारिक मतभेद इतने बढ़ गये हैं कि अब उनका पति पत्नी के रूप में साथ साथ रहना सम्भव नहीं है।"

The argument of the learned counsel for the revisionist is to the effect that after the grant of a decree of divorce under Section 13 B the application under Section 125 of Cr.P.C. would not be maintainable, as at the time when the application was filed there was no subsisting relationship of husband and wife existing between them, also that the fact that she was already happens to be the beneficiary of the entire financial benefit, which was settled by the decree dated 21.02.2014. He argues that for invoking Section 125 there has to an existing legal liability at maintain a spouse and as after the decree under Section 13B, the responsibility for maintenance do not subsist, hence, not liable to pay.

In such a circumstances, the direction, which has been given in the application under Section 125 of Cr.P.C., to pay the maintenance of Rs.10,000/- per month to respondent no. 2, the same is directed to be deposited by the revisionist before the Registry of this Court @ Rs.8,000/- per month, which will remain deposited and would be subject to the decision of the revision.