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Madhya Pradesh High Court · body

2025 DIGILAW 189 (MP)

Vishnu Kumar Gupta v. Shilpi Khaira

2025-03-12

DINESH KUMAR PALIWAL

body2025
ORDER 1. This revision under section 397 read with section 401 of the Code of Criminal Procedure, 1973 has been filed assailing only para 18 of the impugned order dated 2.12.2024 passed in MJCR No.224/2023 (Vishnu Kumar Gupta v.Smt Shilpi Khaira and another) whereby the learned Principal Judge, Family Court, District Sehore (M.P.) while allowing the petitioner's application under section 126(2) of Cr.P.C. has directed him to deposit half of the total arrears of maintenance amount i.e. Rs.21,45,000/- which is Rs.10,72,500/- within 15 days. 2. Learned counsel for the petitioner has submitted that the petitioner has deposited an amount of Rs.5,00,000/- in compliance of this Court order dated 17.12.2024 before the trial Court. It is further submitted that in addition to aforesaid amount he has already deposited Rs.2,74,000/- against the arrears of maintenance amount. It is contended that when petitioner's application under section 126(2) of Cr.P.C. has been allowed, he cannot be compelled to deposit half of the amount as directed by the learned Family Court. The aforesaid condition by the learned Trial court is contrary to the noble provisions of section 126(2) of Cr.P.C. and to buttress his contention, counsel has placed reliance on Tarun Bhowmick v. State of West Bengal and another, 2010 SCC OnLine Cal 1311; Sharafudheen v. Nissa P. and another, 2017 SCC OnLine Ker 16383; and Mohanan A. Girija E. and another, 2022 SCC OnLine Ker 6800. 3. On the other hand, learned counsel for the respondent-wife has opposed the petition and has submitted that petitioner is working in USA and more than 22000 dollars are deposited in his account. Respondents are his estranged wife and minor son. Respondent No.1 wife is unemployed and is not able to maintain herself and the minor son who is studying in class IV of St. Anne's School, Sehore. It is submitted that ex parte order was passed by the Family Court in their favour granting total maintenance of Rs.55,000/-, i.e. Rs.30,000/- in favour of respondent No.1 wife and Rs.25,000/- in favour of minor son has been set aside subject to aforesaid condition. The condition imposed is laudable and petitioner is liable to fulfill the same. If petitioner fails to fulfill the aforesaid condition, he is not entitled to any relief. As such, it is prayed that revision petition be dismissed. 4. The condition imposed is laudable and petitioner is liable to fulfill the same. If petitioner fails to fulfill the aforesaid condition, he is not entitled to any relief. As such, it is prayed that revision petition be dismissed. 4. Before dwelling into the aforesaid submission put forth by learned counsel appearing for the parties, it would be apposite to refer provisions of Section 126(2) of Cr.P.C. which read thus : "126. Procedure. (1) xxx xxx xxx (2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases; Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper." 5. It is admitted that by order dated 10.5.2023 application of the respondents under section 125 of Cr..P.C. was allowed and respondent No.1/wife was granted maintenance of Rs.30,000/- and minor son was granted maintenance of Rs.25,000/-. It is admitted that thereafter petitioner herein moved an application under section 126 (2) of Cr.P.C. before the Family Court, Sehore. The learned Principal Judge allowed the aforesaid application subject to condition of depositing half of the amount of the arrears of maintenance. 6. It is apparent that ex parte order passed under section 125 of Cr.P.C. has been set aside. Once an ex parte order of maintenance passed under section 125 of the Code is set aside, under section 126(2) of the Code of Criminal Procedure on contest the main maintenance application stand restored and same has to be disposed of afresh on merit in accordance with law. Once an ex parte order of maintenance passed under section 125 of the Code is set aside, under section 126(2) of the Code of Criminal Procedure on contest the main maintenance application stand restored and same has to be disposed of afresh on merit in accordance with law. While passing any order under section 126(2) of the Code of Criminal Procedure, setting aside an order of ex parte maintenance the learned Magistrate cannot pass such order imposing a condition which would amount to recall of his order of setting aside of ex parte order of maintenance, which is final in nature for the simple reason a Criminal Court has no power to review or recall any final order passed by it. It is true that according to the proviso to section 126(2) of the Code of Criminal Procedure, the order of ex parte maintenance can be set aside subject to such terms including terms as to payment of cost to the opposite party/wife as the Family Court/Magistrate may think just and proper. However, the word "such terms" obviously does not include passing any order which the learned Family Court/Magistrate is not otherwise legally empowered to pass. As the order of ex parte maintenance was set aside by the court below on merit, I am of the considered view that it would be conducive in the interest of justice the same has to be disposed of finally in accordance with law that too on merit. Reliance is placed on Tarun Bhowmik (supra). 7. It is also worth mentioning that the Family Court/Magistrate is competent to pass such interim order on such terms and conditions which the Court deems fit and proper. Though a discretion is conferred on the Court below, that discretion has to be exercised on sound legal principles and also considering the principles of justice and equity. Having considered the entire facts, I am of the view that 50% of arrears itself would be a huge amount and the petitioner herein ought not have been called upon to pay such a huge amount as a condition for setting aside the ex parte order. 8. It is worth mentioning that petitioner has already deposited Rs.7,74,000/- before the trial Court. 8. It is worth mentioning that petitioner has already deposited Rs.7,74,000/- before the trial Court. Therefore, I am of the view that this petition can be disposed of modifying the condition that the petitioner is not required to deposit any further money in compliance of the Family Court order except the amount of Rs.7,74,000/- which he has already deposited before the trial Court. 9. In similar circumstances, the High Court of Kerala in Mohanan A. (supra) was of the view that the impugned order can be modified by substituting payment of cost of Rs.5,000/- (Rupees Five Thousand). 10. Therefore, having taken into consideration the fact that the petitioner herein has already deposited an amount of Rs.7,74,000/- before the trial Court, therefore he is not directed to deposit rest of the amount which is required to fulfill the condition of depositing half of the amount imposed by the Family Court as ex parte order has already been set aside by the Family Court. 11. Therefore, this petition is disposed of modifying the condition imposed by the Family Court that whatsoever amount has already been deposited by the petitioner-husband/father before the trial Court, that be deemed sufficient. 12. Parties are directed to appear before the Family Court and Family Court shall decide the application under section 125 of Cr.P.C. in accordance with the provisions of the law. However, it is made clear that amount so deposited by the petitioner shall not be released till final disposal of the application and if any order granting interim maintenance or maintenance is passed by the Family Court, the amount so deposited may be adjusted against the deposited amount with the consent of petitioner husband. The order dated 25.11.2024 passed by the learned Principal Judge, Family Court, Sehore with regard to transmitting and enabling U.S. Department of Justice for cancellation of passport of the petitioner is quashed in the light of the order dated 2.12.2024 whereby application under section 126(2) of Cr.P.C. has been allowed. 13. This revision petition stands disposed of accordingly.