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Rajasthan High Court · body

2012 DIGILAW 626 (RAJ)

Sailesh Chopra v. Smt. Sweety

2012-03-13

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant miscellaneous petition has been filed by the petitioner challenging the order dated 15.11.2008 passed by the learned Additional Chief Judicial Magistrate No. 2, Jodhpur in Criminal Case No. 20/2007, whereby the learned Additional Chief Judicial Magistrate, in the proceeding initiated by the respondent No. 1 (wife) under the provisions of Domestic Violence Act, has directed the petitioner to make payment of Rs. 5,000/- per month to the respondent from the date of filing of the application, as well as payment of compensation of Rs. 25,000/- to the respondent-wife. 2. Assailing the said order, learned counsel for the petitioner submits that the application filed by the respondent was rejected in default on 5.3.2008 and thereafter she filed an application for restoration of the application, which was restored vide order dated 20.6.2008 but the notices prior to restoration were not served upon the petitioner and, thus, the impugned order, is absolutely illegal. 3. Per contra, Mr. Sheetal Kumbhat, learned counsel for the respondents submits that the notices of restoration of the application were, in fact served upon the petitioner and the petitioner avoided to appear despite service of notices, thus the ex parte proceedings were rightly taken against the petitioner. He further submits that if the petitioner makes payment of the arrears of maintenance till date then he does not object to the proceedings being reopened. 4. I have given my thoughtful consideration of the rival arguments advanced at the bar and carefully gone though the record of the case. 5. After having gone through the record of the case, it is prima facie revealed that the claim of the petitioner that the notices of restoration application were not served upon him is absolutely contrary to the material available on record. It appears that the petitioner, deliberately in order to mislead the Court, cooked up a new address for the purpose of showing that he was not residing at the earlier address. A certificate of the Postal Department showing service of registered notice to the petitioner is available on record and thus, the claim of the petitioner that service of the notice was not effected upon him, is prima facie negated from the record. 6. A certificate of the Postal Department showing service of registered notice to the petitioner is available on record and thus, the claim of the petitioner that service of the notice was not effected upon him, is prima facie negated from the record. 6. However, in the interest of justice, it is thought fit that the petitioner should be given one opportunity of contesting the application filed by the respondent-wife, but the said opportunity can be granted to the petitioner only upon his depositing the arrears of maintenance accrued till date from the date of passing of the order by the learned Additional Chief Judicial Magistrate No. 2, Jodhpur. 7. Learned counsel for the petitioner submits that the petitioner would not be able to deposit the whole of the amount of arrears in a single installment, thus he should be permitted to deposit the arrears in four equal monthly installments. 8. Accordingly, the miscellaneous petition is allowed and subject to petitioner's depositing the arrears of maintenance accrued till date from the date of the order of the learned Additional Chief Judicial Magistrate No. 2, Jodhpur in four equal monthly installments or earlier, the proceedings of Criminal Case No. 20/2007 shall be reopened and thereafter the petitioner shall be permitted to participate and contest the said proceedings in accordance with law. The said liberty shall be available to the petitioner only after he makes complete payment of the balance amount of the maintenance to the respondent-wife till date as directed by this order. If the petitioner does not deposit the complete amount of maintenance arrears as directed above, then after the lapse of four months, the order passed by the learned Additional Chief Judicial Magistrate No. 2, Jodhpur concluding the proceedings under the Domestic Violence Act shall stand restored. The stay petition stands disposed of. In the event of the proceedings being taken up after the petitioner makes the payment, as directed above, the petitioner shall be entitled to raise all his defences/objections before the learned Additional Chief Judicial Magistrate No. 2, Jodhpur, who shall deal with the same and decide them in accordance with law.Petition allowed. *******