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2024 DIGILAW 289 (UTT)

Jai Prakash Sharma v. Ayushi

2024-04-30

RAVINDRA MAITHANI

body2024
JUDGMENT : RAVINDRA MAITHANI, J. 1. The challenge in this revision is made to the ex-parte judgment and order dated 29.08.2023, passed in Case No. 30 of 2020, Smt. Ayushi and Another Vs. Sri Jai Prakash by the court of Additional Family Judge, Roorkee, District Haridwar (“the case”). 2. Heard learned counsel for the parties and perused the record. 3. The respondent no. 1 filed an application under Section 125 of the Code of Criminal Procedure, 1973 (“the Code”) claiming maintenance from the revisionist. It has been the case of the respondent no. 1 that she and the revisionist were married on 06.12.2014. They were blessed with a baby girl, the respondent no. 2. But after marriage, the revisionist and his family members were not happy with the dowry given and they started demanding a Swift Desire car and Rs.3 Lakh in cash, due to which the respondent no. 1 was harassed. She was beaten up also. On 01.06.2015, the respondent no. 1 was expelled from her matrimonial house by the revisionist. There only she had delivered a baby girl. According to the respondent no. 1, she is not able to maintain herself, whereas the revisionist works in Merchant Navy and earns Rs.1,80,000/- per month salary. Claim for Rs.50,000/- per month maintenance was made by the respondent no. 1. 4. In the case, the revisionist was served with the notice. He appeared. On 09.01.2023, the date was adjourned in the case on the adjournment application filed by the revisionist. The next date fixed was 15.02.2023. On that also the revisionist filed an adjournment application and the next date fixed was 14.03.2023. On 14.03.2023, the revisionist did not appear and the case proceeded ex-parte against him. On the next date i.e. on 11.04.2023, the respondent no. 1 filed her ex-parte evidence and subsequently impugned order has been passed. 5. Learned counsel for the revisionist would submit that the ex-parte proceeding order is not good in the eye of law. He would refer to the margin of order sheet dated 15.02.2023, wherein, it is recorded that the respondent is not present proceed ex-parte. It is argued that this endorsement is made by the respondent no. 1 herself. Therefore, based on such endorsement, ex-parte proceeding could not have been initiated. 6. Learned counsel has raised the following points: (i) The respondent no. It is argued that this endorsement is made by the respondent no. 1 herself. Therefore, based on such endorsement, ex-parte proceeding could not have been initiated. 6. Learned counsel has raised the following points: (i) The respondent no. 1 has concealed the fact that in another application under the Protection of Women From Domestic Violence Act, 2005 (“the Act”) in the year 2021, the respondent no. 1 and 2 were awarded Rs.8,000/- per month maintenance. But, it is argued that this factum was concealed by the respondent no. 1 in her application under Section 125 of the Code. (ii) The income of the revisionist has not been proved by any documentary evidence and the assessment of income is mere guess work. 7. Learned counsel for the respondent nos. 1 and 2 would submit that notice was properly served on the revisionist. He did not chose to appear. He did not file any objection. 8. The copy of order sheets has been filed as Annexure 2 in this revision. It categorically records that on 09.01.2023, the case was adjourned on an application of the revisionist. Thereafter, on 15.02.2023, the case was also adjourned on an application of the revisionist and the next date fixed was 14.03.2023. The order sheet of date fixed 14.03.2023 is quite explicit and records that the revisionist did not appear on that date and the case proceeded ex-parte against him. 9. Who made the endorsement below the order sheet dated 15.02.2023 may not be speculated by the Court. The fact remains that on the date of hearing i.e. 14.03.2023, the revisionist did not appear and the case proceeded ex-parte against him. Thereafter, evidence was given. It is not only one date when the revisionist was not absent. After 14.03.2023, next date fixed was 11.04.2023, thereafter, the date fixed in the matter was 20.05.2023, 14.06.2023 and 17.07.2023. On 18.08.2023, the arguments were heard in the case and thereafter, judgment was delivered. The ex-parte proceeding order is quite valid in the instant case. 10. In the maintenance case, the best evidence in relation to the salaried person is the salary certificate. It appears that it has not been filed by the respondent no. 1 in the case. But the fact remains that in her application under Section 125 of the Code, in Para 14, the respondent no. 10. In the maintenance case, the best evidence in relation to the salaried person is the salary certificate. It appears that it has not been filed by the respondent no. 1 in the case. But the fact remains that in her application under Section 125 of the Code, in Para 14, the respondent no. 1 has stated that the revisionist works in Merchant Navy and gets Rs.1,80,000/- per month salary. In fact, the respondent no. 1 has claimed Rs.50,000/- per month maintenance i.e. Rs.25,000/- per month for herself and Rs.25,000/- per month for her daughter. 11. The revisionist was aware of the allegations made by the respondent no. 1 in her application under Section 125 of the Code. He did not choose to rebut it. It has been deposed on oath by the respondent no. 1 in her ex-parte evidence. The evidence of the respondent no. 1 remains uncontroverted. As stated, it is not on the back of the revisionist. He was told well in advance by the respondent no. 1 that she claims his income as Rs.1,80,000/- per month as working in the Merchant Navy. This was so done by making those averments in para 14 of her application under Section 125 of the Code. The Court did not believe Rs.1,80,000/- per month income of the revisionist. In internal page 4, first paragraph in the impugned order, the court had recorded that the revisionist earns Rs.50,000/- per month conveniently. It is argued that it is a kind of guess work. In cases when salary certificates are not filed in maintenance cases, the court tries to reach nearest to correct income of the person. There involves some estimation. It may not be termed as guess work. But, the estimation of income is made based on attending circumstances. That is what is done in the instant case. 12. The respondent nos.1 and 2 has claimed Rs. 50,000/- per month maintenance. The court below did not grant Rs.50,000/- per month maintenance. As stated, the court also did not conclude that the income of the revisionist is Rs.1,80,000/- per month. Instead, it was assessed as Rs.50,000/- per month. Merely, Rs.16,000/- per month maintenance was granted to the respondent nos. 1 and 2. There is no error in the impugned order. 13. It is argued that the respondent no. 1 did conceal that she gets Rs. Instead, it was assessed as Rs.50,000/- per month. Merely, Rs.16,000/- per month maintenance was granted to the respondent nos. 1 and 2. There is no error in the impugned order. 13. It is argued that the respondent no. 1 did conceal that she gets Rs. 8,000/- per month maintenance under the provisions of the Act. Reference has been made to an order dated 30.09.2021, passed in Misc. Case No. 173 of 2019, Smt. Ayushi Vs. Jai Prakash Sharma and Others, by the court of Additional Chief Judicial Magistrate, Roorkee, District Haridwar. By it an application filed by the respondent no. 1 under Section 23 of the Act has been allowed and she alongwith her daughter has been awarded Rs. 8,000/- per month maintenance. This order under Section 23 of the Act is an interim order. What is the final order? There is no record to it. Even if there is some order of payment of maintenance in favour of the respondent nos. 1 and 2 which allegedly the respondent nos. 1 and 2 have concealed, the revisionist still has a remedy to move an application for modification of the order of maintenance passed by virtue of the impugned judgment and order. 14. Having considered the facts and circumstances of the case, this Court is of the view that there is no reason to make any interference. Accordingly, the revision deserves to the dismissed. 15. The revision is dismissed.