Cr.P.C. (Sandeep Kumar Pal v. Suneeta Pal), Police Station Rasra, District Ballia. By the impugned exparte judg

Heard learned counsel for the revisionist, learned counsel for the respondent No.2 and learned A.G.A. for the State-respondent and perused the material available on record. Learned counsel for the revisionist submits that he has filed a copy of order-sheet of the court below regarding case concerned which reveals that case was filed under Section 125 Cr.P.C. on 25.01.2023 by applicant Suneeta Pal. On 22.03.2023 notice was directed to be issued to opposite party by registered post on 12.05.2023, this is mentioned in the order sheet by the court below that summon was issued to opposite party on 25.03.2023, registered post has not been returned back, therefore the presumption is drawn that summon has been served upon opposite party and inspite of service of summons he did not appear in the case, therefore in absence of opposite party the case is proceeded exparte against him. On 21.06.2023 exparte evidence was filed and case was fixed for exparte arguments, exparte arguments were heard on 14.05.2023 and judgment and final judgment was passed on 06.09.2023. He next submitted that opposite party presently works in Armed Forces, he is presently posted in Shrinagar in State of Jammu and Kashmir. His salary slip is placed on record, which reveals that as per salary slip of January, 2023, his gross salary was Rs.57,232/- and compulsory deductions were Rs.23,507/- therefore in January, 2023 his net salary was Rs.33,527/-, his presently gross income is around Rs.60,000/- per month. He further submitted that inspite of the fact that the revisionist was posted in defence services in other states, summons were issued on address of his native place lying in district Ghazipur, and summons were directed to be issued by registered post to the revisionist, which was deemed to have been served by presumption drawn by court under head of Order V Rule 9 (5) C.P.C.. Whereas revisionist was not residing within the jurisdiction of court at that time, therefore, service of summons on defendant is not a proper service. This is admitted fact that no personal service was effected on defendant. He further submitted that a compulsory deductions from salary of the revisionist was made by orders of drawing and disbursing officer on complaint of respondent No.2 and particulars of deductions of money are shown in a supplementary affidavit dated 15.01.2025, which reveals that regular payment was made to respondent No.2 from salary of the revisionist since 2019. However, after filing of present maintenance case on 06.09.2023, the deductions from salary of the revisionist were confined to Rs.8,033/- per month which was paid to his minor children, the original applicant No.2 and 3 and payment to applicant No.1 was discontinued. Revisionist has filed divorce petition against respondent No.2 for dissolution of marriage. However, it was dismissed in course of time for want of prosecution on 12.02.2024. Revisionist had filed an application under Section 126 Cr.P.C. for setting aside impugned exparte judgment and order prior to filing of present Criminal Revision, which was dismissed in default. He further submitted that salary certificate of the revisionist for the month of January, 2023 itself shows that Rs.8,033/- was deducted towards Family Allot Money Charge (FAMO) from salary of that month. Learned counsel for the respondent No.2 submitted that revisionist has not paid any amount to respondent No.2, only Rs.4,500/- per month is being deducted towards maintenance of respondent Nos. 3 and 4 minor children of parties, which is highly insufficient even for catena to meets of the minor, the respondent No.2 suffering from acute financial crisis and it is difficult for her to meet her both ends alongwith her children. The gross salary of revisionist at present is around Rs.70,000/- per month, but he could not comply with the impugned judgment and order regarding maintenance awarded to the applicants. Considering the rival submissions of the learned counsel for the parties and material available on record, and observations made in the impugned judgment and order, I am of the considered opinion that service of process on revisionist during hearing of maintenance case was not sufficient. This is admitted fact that no personal service or summon was effected on revisionist and the service of process by registered post was found to be sufficient in view of presumption raised under Order V Rule 9 Sub Rule 5 proviso, which provides that where summon was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons. In view of above proviso, the learned court below has issued a declaration that summons are deemed to be served upon respondent No.2 by registered post. Admittedly there is no plausible evidence of service of summons on revisionist, personally or by refusal. This is also admitted that during the period when summons were issued to revisionist by registered post he was posted at his work place lying in some other Stated in defence force. Therefore, the impugned exparte judgment and order is not liable to be sustained and deserves to be set-aside and matter is liable to be remanded to the court below for hearing and decision afresh, after giving opportunity of hearing and giving evidence to both sides subject to the conditions imposed hereinafter. The impugned judgment and order is set-aside with condition that revisionist will deposit Rs.1 lakh through RTGS in the account of respondent No.2 or through Demand Draft issued in her favour. Apart from that he will pay and continue to pay Rs.7,000/- to respondent No.2, and Rs.3,000/- to each respondent Nos. 3 and 4 on monthly basis during the pendency of maintenance case before the court below as interim maintenance. In case revisionist fails to comply these conditions, this order will not be given effect by learned trial court and impugned judgment will hold good. With above observations and direction the revision is allowed. Learned court below is directed to decide the maintenance case after giving opportunity of hearing and giving evidence to both sides, giving a positive finding regarding present net salaried income of the revisionist. Order Date :- 27.2.2025 Ashish/- ASHISH KUMAR SINGH High Court of Judicature at Allahabad

Heard learned counsel for the revisionist, learned counsel for the respondent No.2 and learned A.G.A. for the State-respondent and perused the material available on record. Learned counsel for the revisionist submits that he has filed a copy of order-sheet of the court below regarding case concerned which reveals that case was filed under Section 125 Cr.P.C. on 25.01.2023 by applicant Suneeta Pal. On 22.03.2023 notice was directed to be issued to opposite party by registered post on 12.05.2023, this is mentioned in the order sheet by the court below that summon was issued to opposite party on 25.03.2023, registered post has not been returned back, therefore the presumption is drawn that summon has been served upon opposite party and inspite of service of summons he did not appear in the case, therefore in absence of opposite party the case is proceeded exparte against him. On 21.06.2023 exparte evidence was filed and case was fixed for exparte arguments, exparte arguments were heard on 14.05.2023 and judgment and final judgment was passed on 06.09.2023. He next submitted that opposite party presently works in Armed Forces, he is presently posted in Shrinagar in State of Jammu and Kashmir. His salary slip is placed on record, which reveals that as per salary slip of January, 2023, his gross salary was Rs.57,232/- and compulsory deductions were Rs.23,507/- therefore in January, 2023 his net salary was Rs.33,527/-, his presently gross income is around Rs.60,000/- per month. He further submitted that inspite of the fact that the revisionist was posted in defence services in other states, summons were issued on address of his native place lying in district Ghazipur, and summons were directed to be issued by registered post to the revisionist, which was deemed to have been served by presumption drawn by court under head of Order V Rule 9 (5) C.P.C.. Whereas revisionist was not residing within the jurisdiction of court at that time, therefore, service of summons on defendant is not a proper service. This is admitted fact that no personal service was effected on defendant. He further submitted that a compulsory deductions from salary of the revisionist was made by orders of drawing and disbursing officer on complaint of respondent No.2 and particulars of deductions of money are shown in a supplementary affidavit dated 15.01.2025, which reveals that regular payment was made to respondent No.2 from salary of the revisionist since 2019. However, after filing of present maintenance case on 06.09.2023, the deductions from salary of the revisionist were confined to Rs.8,033/- per month which was paid to his minor children, the original applicant No.2 and 3 and payment to applicant No.1 was discontinued. Revisionist has filed divorce petition against respondent No.2 for dissolution of marriage. However, it was dismissed in course of time for want of prosecution on 12.02.2024. Revisionist had filed an application under Section 126 Cr.P.C. for setting aside impugned exparte judgment and order prior to filing of present Criminal Revision, which was dismissed in default. He further submitted that salary certificate of the revisionist for the month of January, 2023 itself shows that Rs.8,033/- was deducted towards Family Allot Money Charge (FAMO) from salary of that month. Learned counsel for the respondent No.2 submitted that revisionist has not paid any amount to respondent No.2, only Rs.4,500/- per month is being deducted towards maintenance of respondent Nos. 3 and 4 minor children of parties, which is highly insufficient even for catena to meets of the minor, the respondent No.2 suffering from acute financial crisis and it is difficult for her to meet her both ends alongwith her children. The gross salary of revisionist at present is around Rs.70,000/- per month, but he could not comply with the impugned judgment and order regarding maintenance awarded to the applicants. Considering the rival submissions of the learned counsel for the parties and material available on record, and observations made in the impugned judgment and order, I am of the considered opinion that service of process on revisionist during hearing of maintenance case was not sufficient. This is admitted fact that no personal service or summon was effected on revisionist and the service of process by registered post was found to be sufficient in view of presumption raised under Order V Rule 9 Sub Rule 5 proviso, which provides that where summon was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons. In view of above proviso, the learned court below has issued a declaration that summons are deemed to be served upon respondent No.2 by registered post. Admittedly there is no plausible evidence of service of summons on revisionist, personally or by refusal. This is also admitted that during the period when summons were issued to revisionist by registered post he was posted at his work place lying in some other Stated in defence force. Therefore, the impugned exparte judgment and order is not liable to be sustained and deserves to be set-aside and matter is liable to be remanded to the court below for hearing and decision afresh, after giving opportunity of hearing and giving evidence to both sides subject to the conditions imposed hereinafter. The impugned judgment and order is set-aside with condition that revisionist will deposit Rs.1 lakh through RTGS in the account of respondent No.2 or through Demand Draft issued in her favour. Apart from that he will pay and continue to pay Rs.7,000/- to respondent No.2, and Rs.3,000/- to each respondent Nos. 3 and 4 on monthly basis during the pendency of maintenance case before the court below as interim maintenance. In case revisionist fails to comply these conditions, this order will not be given effect by learned trial court and impugned judgment will hold good. With above observations and direction the revision is allowed. Learned court below is directed to decide the maintenance case after giving opportunity of hearing and giving evidence to both sides, giving a positive finding regarding present net salaried income of the revisionist. Order Date :- 27.2.2025 Ashish/- ASHISH KUMAR SINGH High Court of Judicature at Allahabad