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1996 DIGILAW 25 (RAJ)

Rajendra Pal v. Anjali Singh @ Anju & Kumari Aashima

1996-01-05

RAJENDRA SAXENA

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Honble SAXENA, J. – This revision petition has been filed against order dated 24/2/1995 passed by the learned Judge, Family Court, Kota, whereby he allowed application under Section 125, Cr.P.C. filed by the non - petitioners, directed the petitioner to pay an amount of Rs. 500/- per month each to his wife Smt. Anjali Singh and to his minor daughter Kumari Aashima as maintenance allowance from the date of filing their application, to deposit arrears of maintenance allowance within a period of two months and also to pay Rs. 200/- as costs. (2). The petitioner was married to Smt. Anjali Singh on 26/8/1990 and on 21/9/91 Kumari Aashima (non-petitioner No. 2) was born out of their wedlock. On 9/11/1992, the non-petitioners filed an application under section 125, Cr.P.C. before the Family Court, Kota with the averments that the petitioner has neglected and refused to maintain them since 4/10/1992 when he left them at Kota. It was further averred that they did not have sufficient means to maintain themselves, that the petitioner demanded dowry, he used to harass and beat Smt. Anjali Singh, treated her with cruelty and that he was also having illicit relationship with one Smt. Jyoti Kapur. It was pleaded that the petitioners monthly income was Rs. 12000-14,000/-. The non-petitioners therefore, prayed that each one of them be granted maintenance allowance @ Rs. 500/- per month. The petitioner in his reply denied allegations regarding cruelty and adultery and asserted that his wife Anjali Singh was living with her parents at her own accord, and deserted him, for which he has alrea- dy filed a petition under Section 9 of the Hindu Marriage Act in the Family Court, Jaipur, that she has a rental income of Rs. 1,000/- per month and she is also working as Jr. Rural Sociologist in Rajasthan Agricultural Drainage Research and drawing a salary of Rs. 5,000/- per month, that her father is an advocate practising at Kota and her mother is also working as District Sports Officer. He averred that he has now been posted at Madras, that his monthly salary is Rs. 3,800/-, that he has taken an ordinary room on rent and that his old parents are also dependent on him and prayed that the petition be dismissed. (3). On 7/11/1994, the petitioner did not appear before the Family Court and as such, order for proceeding ex-parte against him was passed. 3,800/-, that he has taken an ordinary room on rent and that his old parents are also dependent on him and prayed that the petition be dismissed. (3). On 7/11/1994, the petitioner did not appear before the Family Court and as such, order for proceeding ex-parte against him was passed. He submitted an application dated 23/1/1995 for setting aside the said order but on the next date he again remained absent and therefore, his application was rejected. The learned Judge relying on the affidavit filed by Smt. Anjali Singh passed the impugned order. Hence this revision petition. (4). I have heard Shri A.K. Bajpai, learned counsel for the petitioner and Shri Kamlakar Sharma learned counsel for the non- petitioners at length and carefully perused the record of the lower court in extenso. (5). Shri Bajpai has vehemently contended that the learned Family Court has committed an illegality in not considering the reply and documents filed by the petitioner. According to him, Smt. Anjali Singh has a rental income of Rs. 1000/- per month from her shop which is evident from the copy of the plaint filed by her in the court of the District Judge, Kota, but the lower court did not consider the said docu- ment. He submitted that the lower court has also not taken into consideration the visiting card of Smt. Anjali Singh, from which it is fairly made out that she has been working as Rural Sociologist in Rajasthan Agriculture Drainage Research Project. Shri Bajpai has, therefore, canvassed that the family court has not applied its judicial mind and has committed an illegality in holding that the non-petitioners did not have sufficient means to maintain themselves. (6). On the other hand, Shri Kamlakar Sharma has strenuously submitted that the petitioner deliberately did not appear in the court on many dates and thus malafidely wanted to protract the proceedings in order to harass the non-petitioners, that the petitioner remained absent on 7.11.94 without any sufficient cause, that the photostat copies of the plaint and visiting card were not admissible in evidence, and that there was no reason to disbelieve unrebutted contents of the affidavit of Smt. Anjali Singh. He has thus supported the impugned order and reiterated the reasonings given therein. (7). I have bestowed anxious consideration to rival submissions. He has thus supported the impugned order and reiterated the reasonings given therein. (7). I have bestowed anxious consideration to rival submissions. A careful perusal of the record of the lower court indicates that the petitioners conduct in the proceedings before the Family Court has neither been commendable nor meritorious and that he remained absent on successive dates. In the past also he remained absent on 11/10/93 and on that date order for proceeding ex-parte against him was passed. Thereafter he submitted an application for setting aside the order of proceeding ex-parte and the lower court by its order dated 16/4/94 allowed that application and set aside the order dated 11/10/93. But the petitioner against remained absent on 16/7/94, 12/9/94 and 7/11/1994. The learned lower court, therefore, vide its order dated 7/11/1994 again passed an order for proceeding ex- parte against him and fixed 22/12/94 for evidence. On that date also, the petitioner was absent. On 23/1/95, the petitioner submitted an application to the effect that on 22/12/94, he suddenly fell ill and was not in a position to move and prayed that the order for proceeding ex-parte against him be set aside. It may be mentioned here that he did not assign any reason as to why he did not appear in the court on 7/11/1994 when order for proceeding ex-parte against him was passed. Besides this, he did not submit any medical certificate. Again, the petitioner remained absent on the next date, i.e. 24/2/95. It appears that on that date, an application was submitted by one Mr. R.R. Joseph praying for an adjournment on the ground of ill health of the petitioner, which was rightly rejected by the lower court on the ground that Shri R.R. Joseph was not an authorised agent of the petitioner and that no me- dical certificate was filed alongwith application. In such circumstances, the learned Judge Family Court did not commit any illegality in rejecting the petitioners application for setting aside the order dated 7/11/1994. (8). In Makhdum Ali vs. Mst. Nargis Bano (1), in a proceeding under Section 125, Cr.P.C. the husband was appearing, disappearing and reappearing at his will and pleasure, with the result that the proceedings were protracted and the Magistrate passed an ex-parte order directing him to pay maintenance to his wife and minor daughter. The revision petition filed by the husband was also dismissed. Nargis Bano (1), in a proceeding under Section 125, Cr.P.C. the husband was appearing, disappearing and reappearing at his will and pleasure, with the result that the proceedings were protracted and the Magistrate passed an ex-parte order directing him to pay maintenance to his wife and minor daughter. The revision petition filed by the husband was also dismissed. It was held by the Delhi High Court that the conduct of the husband was not meritorious and that the impugned order did not call for any interference. Similar are the facts of the case on hand. In my considered opinion, sufficient opportunity was given to the petitioner but he deliberately protracted the proceedings and remained absent off and on, and, in such circumstances, the learned lower court was perfectly justified in rejecting the petitioners application presumably filed under Section 126, Cr.P.C. for setting aside the order dated 7.11.94 for proceeding ex-parte against him. (9). The petitioner simply filed photostat copies of a visiting card and the plaint alleged to have been filed by the non-petitioners in the Court of District Judge, Kota for ejectment and recovery of arrears of rent of a shop against Mr. Praveen Kumar and others. Those copies are neither certified copies nor true copies and being photostat copies are not admissible in evidence. The petitioner also did not care to file any counter affidavit to challenge/refute the contents of the affidavit of Smt. Anjali Singh, wherein she has fully testified the averments of her petition filed under Section 125, Cr.P.C. From the affidavit of Smt. Anjali Singh it stands fairly established that the petitioner has sufficient means, but has deliberately neglected to maintain his wife and minor daughter, who have no sufficient independent source of income for their survival. (10). In Smt. Kavita Gupta & Anr. vs. Vinod Kumar Gupta (2), the husband was drawing monthly salary of Rs. 2770/- per month and living with his parents in paren- tal house. It was held that the maintenance granted to the tune of Rs. 300/- and Rs. 200/- per month to the wife and school going minor son, was inadequate and the same was raised to Rs. 500/- per month for each of them. (11). In the instant case, the petitioner is working as Supervisor (Products) in Imperial Chemicals Industries India Limited and posted at Madras. As per his reply, his monthly salary is Rs. 3,800/-. 200/- per month to the wife and school going minor son, was inadequate and the same was raised to Rs. 500/- per month for each of them. (11). In the instant case, the petitioner is working as Supervisor (Products) in Imperial Chemicals Industries India Limited and posted at Madras. As per his reply, his monthly salary is Rs. 3,800/-. In such circumstances, the quantum of maintenance allowance @ Rs. 500/- each to the petitioners is neither excessive nor exorbitant. (12). No other point has been pressed before me. (13). Hence for the reasons mentioned above, I do not find any illegality or impropriety in the impugned order, which does not warrant any interference. Accordingly, this revision petition stands dismissed with costs, which is quantified at Rs. 1,000/-.