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2012 DIGILAW 2180 (RAJ)

Suresh Kumar v. Manju

2012-11-05

SANDEEP MEHTA

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. Today, the matter comes upon second stay petition being S.B. Criminal Misc. Second Stay Petition No. 889/2012, however, with the consent of learned counsel for the parties, the misc. petition itself is being heard and disposed of finally. 3. Briefly stated the facts necessary for the disposal of the misc. petition are that the respondents herein namely Smt. Manju and Asha, who are the wife and daughter of the petitioner respectively filed an application under Section 125 Cr.P.C. against the petitioner in the Court of the learned Judicial Magistrate, Kotdi, Bhilwara on 7.9.2006. During the pendency of the proceedings, the respondents prayed for being granted interim maintenance and the learned trial Court by order dated 1.12.2008 directed that the respondent Smt. Manju shall be entitled for interim maintenance at the rate of rupees one thousand per month and the child Asha shall be entitled for interim maintenance at the rate of rupees five hundred per month. However, despite the order of the learned trial Court, the petitioner never paid a single penny of interim maintenance to the respondents and the main application under Section 125 Cr.P.C. kept on pending. In the meantime, the evidence of the petitioner was closed by the learned trial Court by order dated 18.10.2011, hence, the instant misc. petition has been preferred by the petitioner challenging the order dated 14.10.2011 directing the petitioner to give evidence on affidavit and the order dated 18.10.2011 closing evidence of the petitioner and stopping him from contesting the matter further. 4. Learned counsel for the petitioner submits that the petitioner is ready to make complete payment of arrears of interim maintenance to the respondents. Learned counsel further submits that the learned Magistrate has wrongly proceeded ex-party against the petitioner, as such, petitioner be given one opportunity of leading his oral evidence and to contest the case before the learned trial Court. Learned counsel thus prays that the instant misc. petition be allowed and the orders impugned be quashed. 5. Learned counsel for the respondents submits that since the petitioner has not paid a single penny of interim maintenance to the respondents despite ordered by the learned trial Court way back in the year 2008, as such, the petitioner should not be dealt with sympathetically and the misc. petition should be dismissed. 6. 5. Learned counsel for the respondents submits that since the petitioner has not paid a single penny of interim maintenance to the respondents despite ordered by the learned trial Court way back in the year 2008, as such, the petitioner should not be dealt with sympathetically and the misc. petition should be dismissed. 6. Having heard learned counsel for the parties and keeping in view the peculiar facts and circumstances of the case and keeping in view the fact that on 14.10.2011, the petitioner was present in the Court for giving evidence and on that day, the learned Magistrate insisted that the petitioner should give his evidence on affidavit, this Court feels that one opportunity should be given to the petitioner to lead evidence to contest the application filed by the respondents under Section 125 Cr.P.C. However, Such opportunity shall be available to the petitioner only upon his depositing the complete amount of arrears of interim maintenance granted to the respondents in the learned trial Court.According, this misc. petition is allowed. The order dated 20.6.2012 passed by the learned Special Jude, SC/ST (Prevention of Atrocities) Cases, Bhilwara in revision as well as the orders dated 14.10.2011 and 18.10.2011 passed by the learned Judicial Magistrate, Kotdi are hereby quashed. The learned trial Court shall permit the petitioner to lead oral evidence in defence subject to his depositing the complete amount of arrears of interim maintenance within a period of three months from today. Upon the arrears being deposited, he learned trial Court shall grant one month's time to the petitioner to lead his oral evidence before the learned trial Court and thereafter the matter shall be decided in accordance with law. The arrears upon being deposited shall be disbursed to the respondents. If however, the petitioner does not deposit the arrears of interim maintenance, the trial Court shall take emergent steps to recover the same and the permission granted to him by this order to lead evidence shall stand revoked.The misc. petition as well as the second stay petition being S.B. Criminal Misc. Second Stay Petition No. 889/2012 is disposed of accordingly.Petition disposed of. *******