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2018 DIGILAW 557 (ORI)

Siba Charan Pradhan v. Bina Pradhan

2018-05-15

J.P.DAS

body2018
JUDGMENT J.P. DAS, J. - This is an application under Section 19 of the Family Court Act read with Section 401 of the Code of Criminal Procedure (Cr.P.C., in short) assailing the order dated 27.11.2017 passed by the learned Judge, Family Court, Nayagarh in the Criminal Misc. Case No. 281 of 2017 rejecting an application filed by the present petitioner to set-aside the ex-parte order of maintenance passed against the petitioner on 29.11.2003 in C.M.C. No. 62 of 2003 by the learned S.D.J.M., Nayagarh. 2. The application to set-aside the ex-parte order was filed under Section 126(2) of the Cr.P.C. along with an application under Section 5 of the Limitation Act to condone the delay in filing such application. The learned trial Court has rejected the application solely on the ground that the petitioner was set ex-parte on his refusal to receive the notice and the application to set-aside the ex-parte order was filed after about 13 years 11 months of the ex-parte order, while Section 126(2) of the Cr.P.C. provides that such an application should be made within three months from the date of order. 3. It is submitted on behalf of the petitioner that the opposite party-wife filed the application under Section 125, Cr.P.C. before the learned S.D.J.M., Nayagarh vide C.M.C. No. 62 of 2003. In the said proceeding, notice was issued to the present petitioner and it was held sufficient since it was allegedly refused by him and notice was served by way of affixture by the concerned Process Server obtaining signatures of two witnesses. Simply relying on that the present petitioner as opposite party was set ex-parte and taking up ex-parte hearing the learned S.D.J.M. passed the ex-parte order on 29.11.2003 directing the petitioner to pay monthly maintenance of Rs. 1500/-. 4. It was submitted that the said service report was manufactured at the behest of the petitioner-wife since one of the witnesses namely, Manguli Parida, who signed on the service report, filed an affidavit before the trial Court, presently learned Judge, Family Court, Nayagarh in course of hearing of the application of the petitioner to set-aside the ex-parte order that he has never signed on any such document and also submitted that there was no such person as Narendra Parida in their village who was shown to have signed as the other witness. It was further submitted that the opposite party after obtaining ex-parte order of maintenance, did not execute the same and only in the year 2017, he filed Crl. M.P. No. 65 of 2017 for realization of arrear maintenance of Rs. 18,000/-. It was submitted that only after the petitioner was arrested on the strength of N.B.W. issued by the Court in the said proceeding, he could know about the ex-parte order passed against him and immediately thereafter, she filed an application under Section 126(2) Cr.P.C. to set-aside the same along with an application to condone the delay. 5. It was also submitted by learned counsel for the petitioner that the marriage between the petitioner and the opposite party is not disputed but both the parties on mutual agreement had separated from each other since 1998 and one document was executed in that respect severing the marital relationship between the petitioner and the opposite party with certain terms and conditions. The opposite was returned with all her articles besides some cash and both the parties agreed not to initiate any proceeding against each other relating to such marital relationship. It was submitted that thereafter the petitioner had no occasion to suspect even that a proceeding under Section 125, Cr.P.C. was initiated against him much less passing of an ex-parte order. It was also submitted that not only the service report against the petitioner was manufactured at the behest of the opposite party to set him ex-parte but also the relevant document serving the marital relationship between the parties was kept out of consideration of the Court by concealing the same the opposite party. 6. It was submitted by learned counsel for the opposite party that the petitioner intentionally avoided to receive the notice and was rightly set ex-parte. It was further submitted that only to harass the opposite party and to avoid paying maintenance, the petitioner approached the learned trial Court to set-aside the ex-parte order after a period of long fourteen years. 7. The learned counsel for the petitioner while placing his contentions brought to the notice of the Court the relevant service report, the affidavit filed by one of the signatories to the said service report, a copy of the mutual agreement made between the parties and also copies of the relevant order-sheets of the learned Magistrate besides the impugned ex-parte order of maintenance. It is seen that the petitioner was set ex-parte simply accepting the service return by way of affixture as sufficient. In the impugned ex-parte order it has been simply been mentioned that the opposite party did not appear and hence, the order was passed in his absence. 8. It was submitted on behalf of the opposite party that the petitioner filed the application to set aside the ex-parte order after a long lapse of fourteen years whereas it was the submission on behalf of the petitioner that he came to know about the ex-parte order only after being arrested on the strength of N.B.W. issued in the Execution Proceeding field in the year 2017. On being asked, the learned counsel for the opposite party submitted that he Execution Proceeding was filed in the year 2017 since the petitioner was paying the monthly maintenance regularly prior thereto after the ex-parte order. But, no material could be placed to show that the petitioner was regularly paying the monthly maintenance at any point of time after passing of the ex-parte order or the said ex-parte order was ever executed by getting the maintenance amount from the present petitioner. Thus, the contentions made on behalf of the petitioner that he knew about the ex-parte order only after the filing of Execution Proceeding in the year 2017 appears to be reasonable. The petitioner has also an arguable case to be considered in contesting the claim of maintenance. 9. Learned counsel for the petitioner relied upon a decision of this Court reported in 2005 I OLR 642 (Santosh Naik Vrs State of Odisha and another) the factual and legal aspects of which were almost similar to the present case. There was also similar separation on mutual consent and there was a delay in filing the application for setting aside the ex-parte order. A wife is undoubtedly entitled to maintenance by her husband if the requirements under Section 125 of the Cr.P.C. are satisfied. But, at the same time, the husband must be given an opportunity to put for the his case in the proceeding in the interest of justice. 10. Considering the facts, circumstances and the submissions made on behalf of the parties, it is directed that the present application is allowed. But, at the same time, the husband must be given an opportunity to put for the his case in the proceeding in the interest of justice. 10. Considering the facts, circumstances and the submissions made on behalf of the parties, it is directed that the present application is allowed. The impugned order passed by the learned Judge, Family Court, Nayagarh dated 27.11.2017 in CRLM No. 281 of 2017 as well as the ex-parte order of maintenance passed by the learned S.D.J.M., Nayagarh on 29.11.2003 in C.M.C. No. 62 of 2003 are set-aside. 11. The matter is remitted back to the learned Judge, Family Court, Nayagarh, for disposal after giving fresh opportunity of hearing to both the parties according to law. The matter being related to the year 2003, it is directed that the learned trial Court would do well to dispose of the case as expeditiously as possible and both the parties are directed to co-operate for the same. The RPFAM is disposed of accordingly. RPFAM disposed of.