Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2924 (RAJ)

MUKESH KUMAR v. STATE OF RAJASTHAN

2019-12-02

MANOJ KUMAR GARG

body2019
ORDER 1. Instant misc petition under Section 482 Cr.P.C has been filed by the petitioner against the order dated 16.11.2018 passed by District and Sessions Judge, Sirohi by which the revisional court dismissed the revision petition filed by the petitioner and affirmed the order dated 14.10.2017 passed by learned Additional Chief Judicial Magistrate, Sheoganj, District Sirohi by which the learned trial court allowed the application filed by the respondent wife and ordered to pay maintenance to the wife in the sum of Rs.8000/-per month. 2. Brief facts of the case are that respondent wife preferred an application under Section 125 Cr.P.C for grant of maintenance in the court of learned Additional Chief Judicial Magistrate, Sheoganj in which she mentioned that marriage of petitioner and respondent no.2 was solemnized as per Hindu rites. After marriage, a son Himanshu was born out of the wedlock. It was alleged that right from the marriage, the petitioner husband and his family members harassed the respondent no.2 Smt. Urmila demanding dowry and turned her out. It was alleged that petitioner is doing business in the name of Ajanta Electronics and therefore, maintenance in the sum of Rs. 25,000/- per month may be granted. 3. The Court issued notice to the petitioner but he could not appear and an ex-parte order was passed passed by learned Additional Chief Judicial Magistrate, Sheoganj vide order dated 14.10.2017. 4. Feeling aggrieved by the ex-parte order dated 14.10.2017, a revision petition was preferred before the learned Sessions Judge, Sirohi. However, the learned Sessions Judge dismissed the revision petition vide order dated 16.11.2018. 5. Counsel for the petitioner submits that the notice was not personally served upon the petitioner. When the first notice was issued to the petitioner, he was not present in the house and house was locked so the notice was affixed on the wall of the house in presence of two motbirs. A second notice was issued to the petitioner which was served upon the petitioner's uncle. Thus, it is submitted that summons/notices were not properly served upon the petitioner and in absence of proper service, the petitioner could not appear and defend his case, therefore, the ex-parte order passed by court below so also the order passed by the revisional court may be set aside. Learned counsel place reliance on the judgment in the case of R.K. Surendra Babu Vs. Learned counsel place reliance on the judgment in the case of R.K. Surendra Babu Vs. Sayed Ataullah reported in 2010 (3) Criminal Court Cases 418, Rajesh Agarwal Vs. State & Anr. reported in 2010 (4) Criminal Court cases 549 (Delhi), State of Karnatak Vs. Nallayappa reported in 1996 Cri.L.J 3539 and Rama Chandra Mishra Vs. State of Orissa & Anr. reported in 1995(4) crimes 54 . 6. Per contra, counsel for the respondent no.2 submits that the present misc. petition filed by the petitioner against the order passed by the learned District and Sessions Judge, Sirohi in revision petition is not maintainable at all. He submits that petitioner has alternative remedy to challenge the ex-parte order under Section 126(2) Cr.P.C, therefore, the misc. petition is not maintainable and same may be dismissed. It is further argued that petitioner had already filed a revision petition which was dismissed, therefore, the present misc. petition is virtually a second revision petition, therefore, same is not maintainable and is liable to be dismissed. It is further argued since passing of the maintenance order by the trial court, the petitioner has not paid a single penny, therefore, the petitioner has illegally denied maintenance to the respondent no.2 wife and child. Learned counsel placed reliance on judgments in the case of Laxmi Bai Patel Vs. Shyam Kumar Patel reported in 2002 (2) ACR 1257, Anu Vs. Ratan lal Sharma reported in II (1994) DMC 338 and Vivek Mathur Vs. State of U.P. reported 2018 (104) ACC 808.I have considered the rival contention of the parties as well as carefully gone through the material on record. 7. From the facts on record, it is evident that the summons issued to the petitioner were not personally served upon the petitioner. When the first notice was issued, the house was locked and notice was affixed on the door of the house. When the second notice was issued, the door was locked and notice was served upon petitioner's uncle and thereafter, an ex-parte order was passed by the court below. When the first notice was issued, the house was locked and notice was affixed on the door of the house. When the second notice was issued, the door was locked and notice was served upon petitioner's uncle and thereafter, an ex-parte order was passed by the court below. The provisions of Section 65 of the cr.P.C postulates that 'if service cannot by the exercise of due diligence be effected as provided in Section 62, Section 63 or Section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper. Thus, personal service has not been affected upon the petitioner and it is not the case of the respondents that the petitioner has deliberately tried to avoid the service of summons. Although the petitioner has not filed application under Section 126(2) Cr.P.C but he went in revision petition assailing the ex-parte order and now filed the present misc petition. A limited prayer is made by the petitioner that he may be granted opportunity of hearing before passing the order of maintenance. In the opinion of this Court, petitioner should be granted an opportunity of hearing in the interest of justice before an order of maintenance is passed against him. 8. So far as the contention raised by the counsel for the respondents with regard to maintainability of present misc petition is concerned, in the opinion of this Court power under Section 482 Cr.P.C can be exercised by the High Court in exceptional circumstances where the Court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the Court and will result in failure of justice. 9. In view of above, the impugned orders dated 16.11.2018 and 14.10.2017 are hereby quashed and set aside. The case is remanded back to the trial court and parties are directed to appear before the trial court on or before 16.12.2019 and trial court is directed to decide the case within a period of six months. The petitioner shall appear on each and every date fixed by the trial court. 10. The case is remanded back to the trial court and parties are directed to appear before the trial court on or before 16.12.2019 and trial court is directed to decide the case within a period of six months. The petitioner shall appear on each and every date fixed by the trial court. 10. Since from the date of passing of the order dated 14.10.2017 till date, the petitioner has not paid any amount to the respondent wife and son as maintenance, therefore, petitioner is directed to deposit a sum of Rs. 25,000/- as litigation expenses on 16.12.2019 which shall be paid to the respondent no.2 Smt. Urmila immediately.