Allahabad HC Sets Aside Ex-Parte Maintenance Order Citing Lack Of Mention Of Mode Of Service Of Notice/ Summon To Husband

The Allahabad High Court has recently set aside an ex-parte order of maintenance passed by Additional Principal Judge, Family Court No.3, Agra and consequential recovery warrant on grounds that the mode of service of notice/summons on the husband was not mentioned in the order.

In view of the compromise agreements between the parties, the bench comprising Justice Ram Manohar Narayan Mishra observed that

“In the light of aforesaid facts and circumstances and also in view of fact that in impugned judgement the mode of service of notice/summon to revisionist in proceeding under Section 125 Cr.P.C. is not mentioned, therefore, the claim of the revisionist that he was not aware of the maintenance proceeding initiated by opposite party No.2 as the dispute between the parties was settled through compromise dated 4.3.2016 and no notice of said maintenance case was served upon him, cannot be brushed aside.”

Factual Background

The respondent-wife instituted a maintenance case under Section 125 CrPC. before the Principal Judge, Family Court, seeking maintenance for herself and her minor son claiming herself as guardian of the minor. Respondent-wife claimed that at the time of solemnization of marriage, her parental side spent around Rs.10 lacs in the marriage as gifts and dowry, which includes an Alto Car, Demand Draft of Rs.3 lacs, Rs.11,000/- cash, ornaments and households.

Thereafter, it was alleged that further demand for dowry was raised, and respondent-wife was subjected to mental and physical cruelty. While pregnant with the child, she was allegedly kicked out of her house and she delivered her child in her parental house. After back and forth from the matrimonial home, a complaint was lodged against the husband, and respondent-wife moved back to her parental home.

It was stated that the respondent-wife is a housewife and has no source of income whereas the revisionist husband is a mechanical engineer and his monthly income from all sources is around Rs.50,000/- per month. The revisionist husband was directed to pay Rs.15,000/- per month for the maintenance of the wife and the minor son. Even though notice was issued to the husband, he failed to appear and ex-parte order was passed holding that the husband had deserted his wife and son and failed to bear his matrimonial obligations.

The Court below further observed that the statements of the wife had not been rebutted due to the non-appearance of the husband and thus stood proved. The Court awarded maintenance of Rs. 6,000/- per month to the applicant and Rs.3,000/- per month to her minor son from the date of filing of the application, which is payable on the 10th of each month. Since the revisionist had not paid the aforesaid sum, a recovery warrant was issued on an application filed by the wife for Rs.2,52,000/- as arrears of maintenance.

Counsel for the revisionist husband contended that the respondent-wife had chosen to live separately and had refused to come back with him to their matrimonial house despite best efforts. It was argued that the husband had filed a petition under Section 9 of Restitution of Conjugal rights in the court of Special Judge (S.D.), Ghaziabad, however, his wife insisted that she would only come back if he left his parents. It was also stated that the parties had compromised in cases relating to the Dowry Prohibition Act.

Further, it was argued that he is not a mechanical engineer but a mechanic who works in a private shop to earn his livelihood. It was argued that the respondent-wife moved to her paternal home without any justification and the ex-parte order of maintenance against the husband was unsustainable. Reliance was placed on Section 125(4) of CrPC to state that wife refusing to live without sufficient reason is not entitled to maintenance. Counsel for revisionists placed reliance on the decision of Allahabad High Court in Gaurav Vashisth vs. State and Another in support of his argument.

Per Contra, counsel for the respondent-wife submitted that the revision was instituted to delay paying the maintenance to her and the minor son. It was argued that revisionist husband had deliberately ignored the notice issued by the Court below despite the service of process on him.

High Court Verdict

The Court observed that the parties had entered into a compromise agreement regarding the filing of claims against each other. In the absence of any mode of service of summon/ notice mentioned in the ex-parte order of maintenance, the argument of the revisionist husband that no notice was ever served upon him could not be rejected.

Since the revisionist husband had stated in the affidavit that the first time he came to know about the order was when the recovery warrant was issued against him, the Court deemed it appropriate to allow him to present his case before the Court below.

Accordingly, the ex-parte order of maintenance was set aside with the condition that the revisionist husband deposit the amount as directed by the High Court with the Court below.

Case Title: Lalit Singh v. State Of U.P. And 2 Others 2023 LiveLaw (AB) 502 [CRIMINAL REVISION No. - 3686 of 2023]

Case Citation: 2023 LiveLaw (AB) 502

Counsel for Revisionist: Abhinav Gaur, Uma Shankar Singh, Vineet Kumar Sahu

Counsel for Opposite Party: Prem Chandra Dwivedi

Click Here To Read/Download Order