Umesh Ram, son of Late Shankar Ram, aged about 55 years, resident of village v. 1. The State of Jharkhand 2. Tileshwari Devi, wife of Umesh Ram, resident of
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 1119 of 2022 ----- Umesh Ram, son of Late Shankar Ram, aged about 55 years, resident of village – Chhota Daharbhanga, P.O. and P.S. Tatijhariya, District – Hazaribag. … … … Petitioner Versus 1. The State of Jharkhand 2. Tileshwari Devi, wife of Umesh Ram, resident of village – Chhota Daharbhanga, P.O. and P.S. Tatijhariya, District – Hazaribag. … … … Opp. Parties ------- CORAM: HON’BLE MR. JUSTICE ARUN KUMAR RAI ------- For the Petitioner For the State For the O. P. No. 2 C.A.V. on 17.05.2024 : Mr. Diwakar Jha, Advocate : Ms. Kumari Ranjna Singh, Advocate : Mr. Suraj Deo Munda, A.P.P. : Mr. Shailendra Kr. Singh, Advocate ------ Pronounced on 19.07.2024 1. The instant criminal revision application is directed against the order dated 16.03.2022 passed in Original Maintenance Case No. 63 of 2021 passed by the learned Additional Principal Judge, Additional Family Court, Hazaribagh whereby and whereunder, the petitioner/husband was directed to pay Rs. 3,000/- per month to the wife/opposite party no. 2 as maintenance from the date of filing of the application. 2. In nutshell fact of the case is that, the wife/opposite party no. 2 filed an application under Section 125 CrPC stating therein that she got married with petitioner/husband in the year 1992 but could not be blessed with child and ten years after the marriage, the behavior of husband got changed and he got involved in an illicit relationship with one lady of village – Bondha, P.S. – Tatijharia, District – Hazaribagh and in the year 2012, petitioner/husband left her matrimonial home and since then she was neglected and petitioner/husband is not taking care of her 1 and wife/opposite party no. 2 is having no source of income, on this premise, prayer for maintenance of Rs. 3,000/- sought before the Family Court, Hazaribagh. 3. Learned Additional Principal Judge, Additional Family Court, Hazaribagh proceeded ex parte and after appreciating the material available on record passed an order for maintenance of Rs. 3,000/- 4. By filing present revision petition, plea has been taken on behalf of the petitioner/husband that notice was never served to him and wife/opposite party no. 2 is residing in his house and there is a shop in the said house itself from which she is earing. Further plea has been taken that the petitioner/husband is labourer and having no source of income and on this premise, prayer has been made for quashing/setting aside of impugned order dated 16.03.2022 and giving of an opportunity to petitioner/husband before Family Court, Hazaribagh so that he can bring on record the material which would be necessary for passing just and proper order of maintenance in the present case. 5. Per contra, it has been urged on behalf of the wife/opposite party no. 2 that she is having no source of income, whereas husband/petitioner is working as a mason and also doing contract work and he is having income to the tune of Rs. 60,000/- per month, as such the maintenance awarded by the learned Additional Principal Judge, Additional Family Court, Hazaribagh is very meager amount and at least it should not be interfered by this revisional Court. 6. Heard learned counsel for the parties and perused the material available on record. After perusing the lower court records it transpires that on 23.03.2021 one petition under Section 125 CrPC for maintenance has been filed by the wife/opposite 2 party no. 2 and vide order dated 04.04.2021 learned Principal Judge, Additional Family Court, Hazaribagh directed for issuance of notice and on 07.04.2021 summon through registered post was issued. It further transpires that on 30.09.2021/29.09.2021, learned Principal Judge, Additional Family Court, Hazaribagh directed for issuance of notice by publication in local daily national newspaper, in the absence of any service report available on record. The notice was published in “Prabhat Khabar” newspaper on 02.11.2021. 7. Further, order dated 11.01.2022 of learned Principal Judge, Additional Family Court, Hazaribagh reveals that after taking notice of the fact that no notice was issued through Nazarat as such, direction was given for issuance of notice through Najarat as well as the registered post. On the same day i.e. 11.01.2022, wife/opposite party no. 2 filed newspaper cutting of Prabhat Khabar dated 02.12.2021 which shows that the notice has been published. In compliance of above said order, notice through Najarat as well as registered post issued on 18.01.2022. 8. It appears from order dated 17.02.202 that there is no service report of Najarat but track consignment report of the registered post has been filed on behalf of the wife/opposite party no. 2 which showed delivery of same to husband/petitioner and on the basis of a tracking report and paper publication, the learned Family Court came to conclusion that petitioner-husband intentionally not appearing in the court, therefore, matter proceeded ex-parte. 9. It is apposite in the considered view of this court to discuss the Order V Rule 1 and Rule 20 of the Code of Civil Procedure (C.P.C.), which reads as follows:- Order V – Issue and service of summons 3 1. Summons – (1) when a suit has been duly instituted, a
Legal Reasoning
summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant: Provided that…….. 20. Substituted Service – (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit. (1-A) where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. 10. It appears to this Court from the bare perusal of the aforesaid provisions that Order V Rule 1 provides that a summons may be issued to the defendant to appear and answer the aforesaid claim and to file written statement in his defense, within a span of thirty days from the date of service of summons on that defendant. Further, Rule 20 C.P.C. which provides for the substituted service of summons if the court is 4 satisfied that there is any reason to believe that the defendant is keeping out of the way for purpose of avoiding the service of summons, then only the court shall direct for the substituted service through paper publication. 11. Adverting to facts of the present case, summon was issued to petitioner-husband through registered post on 07.04.2021 and without having postal receipt and track report, learned Family Judge allowed the prayer for publication of notice in local daily newspaper vide order dated 30.09.2021/29.09.2021. 12. In the light of the above provisions, it transpires to this Court that no such satisfaction has been assigned by the learned Additional Family Court, Hazaribagh while directing for issuance of notice by way of paper publication in local daily national newspaper. The notice was published in “Prabhat Khabar” newspaper on 02.11.2021 though again the direction for issuance of notice through Najarat as well as the registered post was given on 11.01.2022, only after the paper publication. 13. This Court is of considered view that the learned Additional Principle Judge, Hazaribagh in its order dated 17.02.2022 has considered the service of summon through registered post on the basis of the track consignment report. But petitioner has taken a plea before this Court that no such summon was received by him through the registered post. Further, this Court after the perusal of orders of the learned Family Court No. – II, Hazaribagh finds that on first occasion notice through registered post was sent to petitioner on 07.04.2021 and without service report, without assigning any reason Family Court accepted the prayer of wife for substituted 5 service on 30.09.2021/29.09.2021 and notice was published in “Prabhat Khabar” newspaper on 02.12.2021, thereafter again court directed for issuance of notice through Najarat and registered post on 18.01.2022 and without waiting for service report of Najarat proceeded ex-parte on the basis of track consignment report with regard to the issuance of summons and the substituted service of notice. 14. The Hon’ble Division Bench of our own High Court has not considered the tracking record as a conclusive proof of valid service in F.A. No. 48 of 2012. Para 8 of the judgment is quoted hereinabove:- “8. The aforesaid mode of services of summons under Rule 9 shall have different requirements upon fulfillment of which the Court may infer or hold that summons was validly served upon the defendant. A valid service of summons upon the defendant is the most important step during 1st stage of any trial and the reason is obvious. It is a fundamental requirement in law that no one should be condemned unheard and therefore no trial of either nature, civil or criminal, can proceed without notice to the other side. For more than one reason, a tracking record cannot be the conclusive proof of valid service of summons upon the defendant. In the first place, a tracking record is required to be placed by the Registry before the Court and it must form a part of the records of the case. Secondly, a tracking record must be supported by an affidavit of Nazir or any other officer of the Court authorised in this behalf. In certain cases, the plaintiff may also lead evidence regarding service of summons with the help of the tracking record. There are other requirements under Rule 9 which have also to be considered by the Court concerned before service of summons upon the defendant is held valid.” 15. The record of proceedings in the Original Maintenance Case no.- 63 of 2021 does not give even an inkling 6 about the aforesaid procedure having been followed by the Court before the matter was proceeded for ex-parte hearing against the revisionist and rendered serious flaws and against the established law and on this ground only impugned order dated 16.03.2022 is liable to be set aside. 16. On merit, it transpires that on behalf of wife/opposite party no. 2 three witnesses including herself Malti Devi and Mohni Devi have been examined in the present matter and they have almost reiterated the contention of application under Section 125 Cr.P.C and have stated the inconsistently regarding income of husband/petitioner. P.W. – 1 has stated the income of the husband/petitioner is Rs. 60,000/-, P.W. – 2 has stated Rs. 15,000/- to Rs. 20,000/- and P.W. – 3 has stated Rs. 40,000/- to Rs. 50,000/- per month by working as a mason and as a contractor. 17. This court is of considered view from the above discussed legal proposition that mere tracking report cannot be conclusive proof of valid service of the summon and no satisfaction assigned by the court for directing for substituted service as per the provision laid under Order V Rule 20 of C.P.C therefore, order dated 17.02.2022 has been rendered illegal. 18. Accordingly, the order dated 16.03.2022 passed in Original Maintenance Case No. 63 of 2021, is hereby set aside to enable the learned Additional Family Court No. II, Hazaribagh to pass a fresh order after giving an opportunity to petitioner- husband to participate in the above-said maintenance proceeding in accordance with law. 19. The parties are directed to appear before the learned Court of Additional Family Court No. II, Hazaribagh on 30th July, 2024. 7 20. Upon their appearance, the learned Court concerned shall proceed in accordance with law and preferably decide the matter within a period of six months form the date of appearance of the parties. 21. It is also directed that so far as the maintenance amount of Rs. 3,000/- fixed by the impugned order is concerned, the petitioner shall continue to pay only the current maintenance amount of Rs. 3,000/- till the disposal of the matter by the concerned court and needless to say that such payment will be subject to adjustment at the final outcome of the present maintenacne case. 22. The criminal revision petition is accordingly
Decision
disposed of. 23. Pending interlocutory application, if any, is disposed of. (Arun Kumar Rai, J.) Umesh/- A.F.R. 8