Vishal Singh vs State Of Uttarakhand & Others

Sharad Kumar Sharma, J

The present revision is listed today on the restoration application. Considering that the reasons, which have been assigned in the restoration application, which are satisfactory, the revision is restored to its original number and the delay, which has chanced in filing the revision since too has been satisfactorily explained, the same too would stand condoned.

The present revision has been preferred by the revisionist challenging the order dated 12.12.2018 as rendered by the Family Court, Haridwar, in Miscellaneous Case No. 227 of 2018 'Smt. Chandni & Others vs. Vishal Singh', whereby, she has invoked Section 125 of the Cr.P.C. for the grant of her maintenance and maintenance of her two minor children, i.e. a daughter, who is now of 10 years of age, and the son, who is now of 3 years of age.

In the proceedings before the Court below a finding, which has been recorded in paragraph 3 of the impugned judgment is to the effect that on the initiation of the proceedings under Section 125 of Cr.P.C. the notice was issued to the revisionist by registered post, but despite of expiry of period prescribed under the Rules, he had not put in appearance nor the notice sent by the Court was received back.

Hence, it would be deemed that the revisionist has been served with the notice as issued by the Family Court, Haridwar. In the application thus preferred by the respondent it was contended that the husband has got a shop of mobile phone and computer accessories called at Mahakali Kutir, Shop No. 5, Opposite Takshshila Main Gate at Mumbai.

It has been contended by the wife in the application under Section 125 of Cr.P.C. that the husband is earning a sum of about Rs. 50,000/- per month, consequently, looking to the liability of the two children which the respondent wife was accruing on maintenance of the children, the Court has fixed a maintenance of Rs. 12,000/- to be paid to respondent nos. 2, 3 & 4 to the application by the revisionist.

It has been argued by the learned counsel for the revisionist that the order is ex parte so it may be set aside and the same may be heard on its own merits, secondly, the wife would not be entitled for any maintenance because she has voluntarily deserted the husband and is not discharging her matrimonial obligations.

In response to it, the respondent had opposed the argument of the learned counsel for the revisionist on the ground that the argument, which has been extended by the revisionist is not sustainable for the reason that the notice, which was sent by the Court, was served on the revisionist and he himself has voluntarily chosen not to oppose the application and the pleadings raised therein pertaining to the income which was accruing to the revisionist.

Since there is a specific finding recorded that the notice which has been sent by the Court has not been received back in view of the rules of the Court, it would be deemed that the revisionist was served and despite of the service he has voluntarily chosen not to participate in the proceedings. Consequently, the Court had no option except to determine the quantum of compensation, which was payable to respondent nos. 2 to 4 at the rate of Rs. 6,000/- and Rs. 3,000/- each respectively for the children.

The second argument of the learned counsel for the revisionist is to the effect that the wife would not be entitled for any maintenance on the ground that she has deserted the husband and is not discharging her matrimonial obligation.

The said aspect is denied by the learned counsel for the respondent on the ground that it is rather just the converse because when the desertion was made by the respondent, the wife has preferred an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, that has been decreed ex parte on 5.03.2018.

In such an eventuality, when Section 9 application of the wife stands allowed atleast the plea of desertion in order to deny the maintenance to the wife is not available to be raised by the learned counsel for the revisionist, and even otherwise also, considering the fact that the respondent no. 2 has to take care of the two minor children, who are staying with her, and the revisionist since being the father and the husband of respondent no. 2 also owes a social responsibility to maintain his wife as well as the children. Considering the income, which has been pleaded by the respondent in her application under Section 125 of Cr.P.C. and which despite of opportunity being granted to the revisionist was not opposed nor has denied it at any stage, this Court is of the view that atleast the respondent nos. 2, 3 & 4 are entitled to be maintained by the revisionist, who happens to be the husband and father respectively, and considering the fact about the impact of the judgment of the proceedings under Section 9, it further becomes incumbent on part of the revisionist to have acceded to the decree as rendered by the Family Court on 05.03.2018 and should have discharged his matrimonial obligations.

Having not done so and considering the fact that the quantum of income, which was accruing to the revisionist, was not denied, this Court is of the view that the amount of maintenance, which has been fixed by the Family Court by the impugned order dated 12.12.2018 making him liable to pay the maintenance of Rs. 12,000/- per month is absolutely just and proper, which does not call for any interference by this Court in the exercise of its revisional power as the impugned order does not suffer from any apparent legal error, which could call for invoking the provisions contained under Section 397 to be read with Section 401 of Cr.P.C.

Consequently, the revision is dismissed. The revisionist is directed to remit the amount as awarded by the Family Court, Haridwar, by 10th of each month to the respondent no. 2.

Subject to what has been observed above, this Court does not find any merit in the present revision. The same is, accordingly, dismissed.