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2013 DIGILAW 815 (RAJ)

Hukmi Chand v. State of Rajasthan

2013-04-27

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been filed by the petitioner assailing the order dated 12.8.2005 passed by learned ACJM No. 2, Chittorgarh, whereby the learned Magistrate awarded the interim maintenance to the respondent No. 2 the petitioner's wife to the tune of Rs. 3000/- per month under Section 125 Cr.P.C. 2. Succinctly stated the facts of the case are that the respondent No. 2 Smt.Geeta being the petitioner's wife filed an application before the learned ACJM No. 2, Chittorgarh under Section 125 Cr.P.C. being application No. 318/2003. The learned Magistrate by the order dated 12.8.2005 granted interim maintenance to Smt.Geeta @ Rs. 3000/- per month from the date of filing of the application i.e. 11.8.2003. The said order was assailed by the petitioner by filing S.B.Cr.Misc.Petition No. 1167/2005 before this Court. This Court by order dated 26.10.2005 ordered as below: "Meanwhie, operation of order dated 12.8.2005 passed by Additional Chief Judicial Magistrate No. 2, Chittorgarh shall remain stayed subject to the condition that the petitioner will continue to pay maintenance in the sum of Rs. 1000/- per month to the non-petitioner from today till the disposal of the instant petition." 3. It appears that during the pendency of the proceedings, Smt.Geeta stopped appearing before the trial Court on which, the main proceedings under Section 125 of the Cr.P.C. were dismissed for lack of prosecution on 29.10.2007. As the main proceedings terminated in favour of the petitioner as having been dismissed for non-prosecution, the learned counsel for the petitioner made a statement before this Court on 26.3.2009 that the misc.petition No. 1167/2005 had been rendered in fructuous and accordingly, the same was dismissed as in fructuous. 4. Thereafter, the respondent No. 2 Smt.Geeta moved an application before the trial Court on 28.2.2011 for restoration of the proceedings. The trial Court by order dated 22.3.2012 restored the proceedings and the matter is under consideration before the trial Court post restoration. The petitioner has now approached this Court assailing the original order dated 12.8.2005 whereby the learned trial Court directed the petitioner to make payment of interim maintenance to Smt.Geeta by renewing his challenge to the order. 5. The trial Court by order dated 22.3.2012 restored the proceedings and the matter is under consideration before the trial Court post restoration. The petitioner has now approached this Court assailing the original order dated 12.8.2005 whereby the learned trial Court directed the petitioner to make payment of interim maintenance to Smt.Geeta by renewing his challenge to the order. 5. Learned counsel for the petitioner submits that the petitioner be given liberty to contest the main proceedings under Section 125 Cr.P.C. before the trial Court but prays for a liberty that the quantum of interim maintenance, which has been awarded to the respondent should be reduced. In the alternative, he prays that during the period when this Court had passed the stay in favour of the petitioner i.e. from 26.10.2005 till the application of the respondent was restored, the petitioner be permitted to pay interim maintenance to the respondent @ Rs. 1000/- per month. Learned counsel submits that it is due to the conduct of the respondent Geeta that the proceedings terminated in default. The respondent was responsible for the same and thus, the petitioner should not be made to suffer for her negligence. 6. Notice of the misc. petition was issued to the respondent but nobody has put in appearance on her behalf despite service. 7. From a bare perusal of the facts mentioned above, it is apparent that the order of interim maintenance awarded in favour of the respondent Smt.Geeta was challenged by the petitioner before this Court by filing a misc. petition. This Court by an interim order dated 26.10.2005 reduced the amount of interim maintenance payable to the respondent Smt.Geeta from a sum of Rs. 3000/- per month to Rs. 1000/- per month. Thereafter, the respondent Smt.Geeta failed to appear before the trial Court and thus, the proceedings were dismissed in default. Obviously, the dismissal of the proceedings was purely because of the negligence committed by Geeta. In view of the aforesaid facts, if the petitioner is made to pay the total arrears of the interim maintenance @ Rs. 3000/- per month, which is the result of restoration of the proceedings by the order dated 22.3.2013, then the petitioner Hukmichand would be put to undue hardship. 8. In view of the aforesaid facts, if the petitioner is made to pay the total arrears of the interim maintenance @ Rs. 3000/- per month, which is the result of restoration of the proceedings by the order dated 22.3.2013, then the petitioner Hukmichand would be put to undue hardship. 8. In view of the peculiar facts and circumstances narrated above, the misc.petition is disposed of and whilst permitting the proceedings under Section 125 Cr.P.C. to be continued, it is hereby directed that the petitioner shall pay interim maintenance to the respondent @ Rs. 1000/- per month from 26.10.2005 i.e. the date of interim order passed by this Court in Misc. Petition No. 1167/2005 till 22.3.2012 i.e. when the proceedings were restored by the learned Magistrate. The learned Magistrate shall ensure that the arrears of the maintenance as well as the current amount is recovered forthwith and disbursed to the respondent.Stay petition is also disposed of.Petition disposed of. *******