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Rajasthan High Court · body

2023 DIGILAW 827 (RAJ)

Deepak Nenawati v. Kavita Nenawati

2023-04-13

FARJAND ALI

body2023
JUDGMENT : FARJAND ALI, J. 1. By way of filing the instant Criminal Revision Petition challenge has been made to the order dated 23.09.2022 passed by the learned Judge, Family Court No. 1, Bhilwara in Criminal Misc. Case No. 166/2021 whereby the proceedings u/Sec. 125 of the Cr.P.C. have been decided finally and the petitioner has been directed to pay a sum of Rs. 16,000/- per month to the respondent-applicant till the point of time she remarries. The amount was to be paid from the date of filing of the application, i.e. 05.07.2021. 2. Bereft of elaborate details, the facts necessary for the disposal of the instant criminal revision petition are that an application under Section 125 of the Cr.P.C. came to be submitted at the behest of the respondent-applicant before the learned Family Court No. 1, Bhilwara (hereinafter for short ‘the trial Court’) averring therein that her marriage got solemnized with the petitioner on 10.06.2015. At the time of marriage, the petitioner was working somewhere in Dubai (UAE). After marriage, she was also taken to Dubai, where the couple spent happy marital life for three months but thereafter, she was sent back to Bhilwara to live with her in-laws. It is alleged that on several occasions, the respondent-wife insisted the petitioner to take her with him to Dubai and to perform the conjugal duties but he never conceded to her prayer. It is alleged that the respondent-applicant-wife was not having sufficient means to maintain her and as such, she was dependent on the petitioner. She also alleged that she was subjected to maltreatment by her in laws. It is alleged that her in-laws had created such compelling circumstances under which, she was constrained to go to her parents home. It is also alleged that she was not getting a single penny from the petitioner as maintenance. She contended that she was not having sufficient means to maintain herself and she needed Rs. 30,000/- per month at the least to meet her daily/basic needs. It is specifically pleaded that the petitioner works as an accountant at Silk Route Creation General Trading, Dubai and thus, is getting Rs. 80,000/- per month as salary. 3. Upon registration of the case, the learned trial Court directed to issued notice to the petitioner. Since the petitioner was residing in Dubai, therefore, service of notice was effected upon him through email. 80,000/- per month as salary. 3. Upon registration of the case, the learned trial Court directed to issued notice to the petitioner. Since the petitioner was residing in Dubai, therefore, service of notice was effected upon him through email. However, the petitioner failed to appear before the Family Court and due to his non- appearance, vide order dated 04.01.2022, the learned Judge, Family Court directed to proceed ex-parte against him. On 05.03.2022, when the evidence of the respondent-wife was recorded, one Shri Shailendra Nanavati, brother of the petitioner moved an application mentioning therein that a power of attorney was given by the petitioner in his favour to appear on his behalf. It is noted that the petitioner himself had sent an e-mail on 21.02.2022 to the learned trial Court for setting aside the ex-parte proceedings. However, the learned trial Court was not convinced with the application moved through e-mail as also the application filed by the brother of the petitioner and proceeded further in the matter. After recording the statement of the respondent-wife, the learned trial Court has allowed the application filed by the respondent-wife vide order dated 23.09.2022 and accordingly, has directed the petitioner to pay a sum of Rs. 16,000/- per month from the date of filing of the application, i.e. 05.07.2021, till she does not re-marry and the same is under assail before this Court. 4. Shri Sanjay Nahar, learned counsel appearing for the petitioner submits that indisputably, the petitioner is residing at Dubai (UAE) since his marriage and the same is very much evident from the cause-title of the application under Section 125 Cr.P.C. and the averments made in the petition. Learned counsel further submits that soon after receiving the notice issued by the Court through e-mail, the petitioner was very keen and inclined to attend the Court proceedings so as to protest the case and to plead his stand but owing to the outbreak of Pandemic Covid-19, the Government of UAE did not allow him to leave the country at that point of time, i.e. in February, 2022; he was helpless, therefore, he sent an application through e-mail to the learned trial Court seeking his participation in the proceedings and for setting aside the ex-parte proceedings but his effors went in vain. Thereafter, he sent an e-mail through his brother Shailendra Nanavati. Thereafter, he sent an e-mail through his brother Shailendra Nanavati. After obtaining the copies of the same, his brother, Shailendra Nanavati, appeared before the Court under his instructions and implored the Court to allow the petitioner to participate in the proceeding and to set aside the ex-parte proceeding but the learned Judge, Family Court, Bhilwara rejected his prayer and deemed it fit to proceed further in the matter ex-parte and passed the impugned order. It is submitted that the principles of natural justice have been violated as the opportunity of being heard and to defend the case has not been properly afforded to the petitioner. He is ready and willing to participate in the proceeding so as to contest the case within the parameters of law but he has been deprived of the opportunity as sought. It is contended that in the interest of justice, the petitioner may be allowed to contest the proceeding so that an order can be passed on the merits of the case after due consideration of the niceties of the matter. Lastly, he prays for setting aside of the order dated 23.09.2022 passed by the learned trial Court. 5. Per contra, Shri Ushman Gharii, learned counsel for appearing for the respondent-wife, vehemently and fervently opposes the submissions advanced at the behest of the petitioner. He contends that the learned trial Court has adopted due process and ample opportunities were provided to the petitioner to participate in the proceeding but the same were not utilized by him willfully, therefore, he is not entitled to get any relief. He further submits that the respondent-wife has been deserted for no fault of her. Firstly, she was constrained to serve the family members at her matrimonial home as a maid of the home and she was regularly subjected to cruelty. On one occasion, she was detained in a closed room, however, by the assistance of the police, she could get rid of the said problem and since then, she has been living with her mother as her father is no more. It is strenuously urged that the learned Family Court has not committed any error of law and the petitioner has miserably failed to point out any illegality, incorrectness and impropriety in the order, therefore, the revision petition deserves to be dismissed. 6. Heard learned counsel for the parties. It is strenuously urged that the learned Family Court has not committed any error of law and the petitioner has miserably failed to point out any illegality, incorrectness and impropriety in the order, therefore, the revision petition deserves to be dismissed. 6. Heard learned counsel for the parties. Perused the material available on record and so also the impugned order. 7. It is not disputed that right from the inception, the petitioner was working in Dubai (UAE), which is very much evident from the record of the case. The service of notice was effected upon him through e-mail. It is a judicially noticeable fact that the effect of outbreak of Pandemic Covid-19 pervaded across the globe and during that period, many countries had disallowed foreign trips and cancelled flights to any destinations abroad. The inclination of the petitioner, can be noticed from the e-mail sent by him to the learned trial Court and to his brother, Shri Shailendra Nanavati. It is not a case of deliberate non-appearance of the petitioner rather he was helpless and his proclivity to contest the case is apparent from the face of the record. 8. “Audi Alteram Partem” is one of the fundamental principle of natural justice, as per which, suitable opportunity of being heard has to be afforded to all the parties. The bona fides of the petitioner are not under question. 9. In this view of the matter, this Court feels that an opportunity should be granted to the petitioner to contest the case so that an order can be passed on merits after taking into account the conflict/diverse contentions of the rival parties. At the same time, sympathetic approach towards the wife, who is residing separately from her husband, is also required to be taken and before setting aside the ex-parte order, her interest would be required to be saved. 10. Accordingly, the instant Criminal Revision is allowed and it is directed that the order impugned dated 23.09.2022 passed by the learned Family Court, No. 1, Bhilwara in Criminal Misc. Case No. 166/2021 is hereby quashed and set aside. The petitioner would be entitled to participate in the proceeding from the stage where ex-parte proceeding started. He will be at liberty to file reply and adduce evidence in support thereof. He shall not protract the proceeding by seeking unnecessary, adjournments. He is further directed to pay Rs. Case No. 166/2021 is hereby quashed and set aside. The petitioner would be entitled to participate in the proceeding from the stage where ex-parte proceeding started. He will be at liberty to file reply and adduce evidence in support thereof. He shall not protract the proceeding by seeking unnecessary, adjournments. He is further directed to pay Rs. 10,000/- per month as interim maintenance to the respondent-wife till disposal of the criminal proceeding under Section 125 of the Cr.P.C. The amount of interim maintenance i.e. Rs. 10,000/- per month shall be paid by the petitioner-husband to respondent-wife from the date of filing of the application i.e. 05.07.2021. The due amount shall be paid by him to the respondent-wife in two equal installments till 30.06.2023 and besides this, from 01.05.2023 onwards, he shall pay Rs. 10,000/- as interim maintenance to the respondent-wife, which shall be paid by him by 15th day of every month till disposal/finalisation of the proceeding under Section 125 of the Cr.P.C. The learned trial Court is directed to rehear the matter from the juncture where order allowing the ex-parte proceeding was passed and decide the case on merits without being influenced by the observations made in the present order. The direction to pay Rs. 10,000/- per month is only an interim arrangement and the same shall not be taken by the learned Court below as determination of amount of maintenance rather at the culmination of the proceeding, the learned trial Court would be at liberty to pass any order on merit strictly in accordance with the provisions of law and material available on record. 11. The petition is allowed accordingly. The stay petition is also disposed of.