Colonel Dushyant v. Kumud), under Section

Legal Reasoning

Court No. - 80 Case :- CRIMINAL REVISION No. - 5590 of 2024 Revisionist :- Colonel Dushyant Singh Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Disha Srivastava,Vinayak Varma Counsel for Opposite Party :- G.A.,Shiv Prakash Gupta Hon'ble Ram Manohar Narayan Mishra,J. 1. Counter affidavit filed by learned counsel for the opposite party No.2 is taken on record. 2. Heard learned counsel for the revisionist, learned counsel for the opposite party No.2, learned A.G.A. for the State-respondent and perused the material available on record. 3. The instant criminal revision has been preferred by the revisionist against the impugned order dated 16.4.2024, passed by learned Additional Principal Judge, Family Court No.2, Varanasi in Case No.720 of 2022 (Colonel Dushyant vs. Kumud), under Section 126(2) Cr.P.C. and impugned order dated 26.9.2024 passed by learned Additional Principal Judge, Family Court No.3, Varanasi in Misc. Case No.1048 of 2024 (Colonel Dushyant vs. Kumud Singh), under Section 126(2) Cr.P.C. whereby the application moved by the revisionist under Section 126 Cr.P.C. have been rejected. 4. The factual matrix of the case in brief are that the original applicant filed a maintenance case under section 125 Cr.P.C. before Principal Judge Family Court, Varanasi which is bearing registration No. 168 of 2019 wherein she has stated that she was married to opposite party Colonel Dushyan Singh on 23.5.1994 according to Hindu rites and rituals. The couple was blessed with a daughter, namely, Rashmika on 18.12.1995 and subsequently they were blessed with a son, namely, Adhyant Singh on 10.5.2000. The applicant was subjected to matrimonial cruelty, harassment and torture by husband and in-laws after marriage and this ill treatment continued even after birth of two children. The opposite party used to deprive her for paying and when she would raise objection to this attitude, he used to be engaged in maar peet and abusive things with her. Applicant filed an application before army authorities under Army Act for seeking maintenance for herself and her children and competent officer passed an order under section 90(1) (46) Arms Act for deduction of 26% of salary of opposite party and payment of same to the applicant for maintenance of herself and her children. Out of 26% salary of opposite party, 15% will be payable to applicant no. 1 and 5.5% each will be payable to her children. This order was passed in December, 2016 and thereafter she was expelled from house by her husband. The monthly salary of his husband is Rs. 2.25 lakh. The couple are living separately since December, 2016 and opposite party was due to retire in near future, 2016. 5. The service of notice was sufficient by learned family court vide order dated 24.2.2020 and on account of none appearance of opposite party, the court proceeded ex-parte against opposite party vide order dated 7.9.2020. 6. Learned family court observed in impugned order that opposite party retired from service on 31.7.2019 and this fact is obvious from pension papers of the opposite party which are filed before the Court. His account statement are also placed on record. He was posted as Colonel in the Army. The applicant has stated that he is re-employed and a paper has been filed in this regard which reveals that he is posted in 81Fd Regt (HQ) Purva U.P. and M.P. Sub Area, Allahabad) since September, 2021 but no paper had been placed on record regarding withdrawal of salary. Applicant has admitted that she received maintenance by order of Army authorities since July, 2019 which was deducted from salary of her husband. 7. It is contended that opposite party is receiving salary at the rate of Rs. 2,10,000/- per month after re-employment and receives Rs. 67,000/- as pension. According to pension papers his pension is calculated as Rs. 51,823/-. Learned family court has decided maintenance case ex-parte vide order dated 2.11.2021 whereby Rs. 15,000/- as maintenance has been awarded to the applicant Kumud Singh since August 2019 to August 2021 and thereafter Rs. 30,000/- per month, daughter of applicant Rashmika has been awarded amount of maintenance at the rate of Rs. 5000/- per month from August 2019 to August 2021 and thereafter at the rate of Rs. 15,000/- per month. Adhyant Singh, son of applicant has been awarded maintenance at the rate of Rs. 5000/- per month from August 2019 to 10.5.2021 as he became major thereafter he is not entitled to seek maintenance. It is also observed that Kumari Rashmika is entitled to receive maintenance till her marriage or employment whichever is earlier. 8. The opposite party filed an application under section 126 Cr.P.C. to set aside the said ex-parte judgement whereas applicant Kumud Singh has filed an application under section 128 Cr.P.C. on 3.8.2022 for enforcement of order of maintenance. The application filed under section 126 Cr.P.C. which was filed by opposite party on 1.7.2022 along with application under section 5 of Limitation Act was heard and learned family court allowed the application under section 5 Limitation Act on payment of Rs. 10,000/- as cost vide order dated 18.1.2024 and fixed the case for hearing on restoration application under section 126 Cr.P.C,. however restoration application was dismissed in default on 16.4.2024 in absence of applicant Colonel Dushyant Singh. 9. Revisionist filed an application under section 3A with affidavit for setting aside the order dated 16.4.2024 by which his restoration application was dismissed in default. Learned family court dismissed the said application vide impugned order dated 26.9.2024 with observation that there was no delay on part of applicant in payment of Rs. 10,000/- as cost imposed in order dated 18.1.2024 but he has been absenting on dates fixed for hearing for restoration application and he was also absent on date fixed i.e. 26.9.2024, therefore, the delay caused in disposal of restoration application is attributable to the applicant himself. 10. Learned court below has dismissed the restoration application filed by the revisionist under section 126 Cr.P.C. vide order dated 26.2.2024 taking a hyper technical approach. 26% salary of the revisionist used to be deducted towards maintenance of the original applicant Kumud Singh and her two children till his retirement on 31.7.2019. His first restoration application filed under section 126 Cr.P.C. was dismissed in default on 16.4.2024 and second application dated 7.6.2024 was dismissed vide order dated 26.9.2024. 11. The respondent no. 2 has filed divorce petition under section 13 of Hindu Marriage Act which she later on withdrew in the year 2021. The revisionist has always supported his family. His daughter is working as corporate layer in Bangalore. He supported her in carrying out her studies in LLM from University of England during period 2021-2024. His son is also pursuing course of Hotel Management under the care of the revisionist. The delay in filing application under section 126 Cr.P.C. was condoned by the learned family court and the cost imposed in the said order has already been deposited, therefore, both the impugned orders dated 16.4.2024 and 26.9.2024 are liable to be set aside in the interest of justice and restoration application filed by the revisionist is liable to be heard on merits as there are arguable points therein. 12. Per contra, learned counsel for the respondent no. 2 submitted that from letter dated 23.8.2019 issued from office of Principal Controller of Defence Accounts Pune which is addressed to respondent no. 2 stated that total out of 42 installments which are due to be paid to her, 26 installment have already been paid along with monthly remittance upto July 2019. Now a balance of Rs. 2,76,796/- is only due to be paid. It is also stated therein there is no provision for recovery of maintenance allowances from the retiral benefits of the officer. 13. In fact, revisionist get reemployment after his retirement and finally retired in the year 2023, however, he has been negligent to pay maintenance to her wife and children. A sum of Rs. 18,21,600/- is due to be paid as arrear of maintenance to the applicants till December, 2024. 14. Considering rival submissions of learned counsel for the parties and keeping in view the totality of facts and circumstances of the case and taking into consideration the golden principle that the approach of trial court should be in favour of hearing to be accorded to the parties before the court instead of withholding the hearing and proceedings ex-parte. 15. Learned court below has dismissed the application 3A whereby prayer has been made by the revisionist to recall order dated 16.4.2024 whereby his application under section 126 Cr.P.C. was dismissed in default. No party is supposed to have suffered on providing hearing to the parties if the matter is not highly delayed due to latches practiced by one or other party. I find merits in submission made on behalf of the learned counsel for the revisionist in present revision and same is liable to be allowed.The impugned orders are not sustainable under law and deserve to be set aside. 16. Consequently, the impugned order dated 16.4.2024 is set aside and application 3A filed by the revisionist for setting aside ex- parte order dated 16.4.2024 is allowed. The impugned order dated 16.4.2024 is also set aside whereby restoration application filed by the revisionist under section 126 Cr.P.C. has been dismissed. The court concerned is directed to restore the misc. case under section 126 Cr.P.C. to its original number and decide the same after giving opportunity of hearing to the parties as expeditiously as possible in accordance with law. Digitally signed by :- SUSHAMA YADAV High Court of Judicature at Allahabad Order Date :- 2.1.2025 Kamarjahan/SY