Shuaib Anwar vs State of U.P. and 2 Others

Sri Azizur Rahman Khan, learned counsel has put in appearance on behalf of the opposite party no.2 and filed his vakalatnama today which is taken on record.

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Heard learned counsel for the revisionist as well as learned counsel for the opposite party alongwith learned A.G.A. for the State and perused the material on record.

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This criminal revision has been filed with prayer to allow the revision and set aside the impugned judgment and order dated 22.04.2025 passed by the court of learned Principal Judge, Family Court, Sambhal at Chandausi in Misc. Case No.113 of 2025 (Shuaib Anwar vs. Neelam and another) under Section 5 of Limitation Act, Police Station Sambhal, District Sambhal and also prays to stay the effect and operation of the order dated 22.04.2025.

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It is submitted by learned counsel for the revisionist that in this case opposite party no.2 is wife and opposite party no.3 is minor son of the revisionist those are living apart from him. She moved an application u/s 125 Cr.P.C. in the year 2023 which was decided ex-parte on 06.05.2024 fixing the amount of maintenance Rs.15,000/- per month in favour of wife and Rs.10,000/- per month in favour of minor son, total Rs.25,000/- per month. Further submits that marriage was performed in the year 2015 and due to some dispute between the parties, the wife started living separate from him. He also submits that the revisionist is working in U.A.E. and at the time of filing of this application he was there. Notice was sent by the learned trial court at his permanent address but he was not residing there. On the basis of refusal of

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notice by any member of his family or servant in the house the service was deemed to be served sufficiently though no information was given to him by members of his family. The learned trial court passed the ex-parte order on assumption of sufficient service of notice as aforesaid. He also submits that he filed an application u/s 126(2) Cr.P.C. with an application u/s 5 Limitation Act for condonation of delay in filing the application u/s 126(2) Cr.P.C., but it was rejected by the order dated 22.04.2025 without considering the submissions of the revisionist though the learned trial court accepted that he was abroad at that time. In this way, the ex-parte order passed by the learned trial court on 06.05.2024 and also the order dated 22.04.2025 being illegal are liable to be set aside and the revisionist be also provided an opportunity of hearing before passing the final order against him. He also submits that regarding recovery of amount of arrears of maintenance in pursuance to the order passed by the learned trial court dated 18.08.2025 under Section 144 (3) B.N.S.S. he has already deposited Rs.50,000/- out of Rs.3,50,000/- and is still ready to make deposit of Rs.1,25,000/- and to continue to pay current amount of interim maintenance that was fixed at the rate of Rs.20,000/- monthly.

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Learned counsel for the opposite party as well as learned A.G.A. opposed the prayer as aforesaid and contended that notice was served on the address of his family at his home which was refused and in such a situation it cannot be said that no information was given to him by his family members who refused to receive the notice. Learned trial court passed the order dated 06.05.2024 after assuming the service of notice. For frustrating the claim of the maintenance of the wife he moved application u/s 126(2) Cr.P.C. with an application u/s 5 of Limitation Act after delay in the year 2025 when recovery proceedings were initiated against him. Learned trial court has rejected the application u/s 5 Limitation Act on the ground of service of notice on him, therefore, there is no illegality in the order passed by the learned trial court. However, he agreed with the offer made by the revisionist about payment of amount of Rs.1,25,000/- as maintenance and continue to pay Rs.20,000/- as interim maintenance till disposal of case u/s 125 Cr.P.C.

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Considering the facts and circumstances of the case, submissions made by learned counsel for both the parties as well as learned A.G.A., perusal of record and the order dated 06.05.2024 passed by the learned trial court u/s 125 Cr.P.C. and the order dated 22.04.2025 on application u/s 5 Limitation Act, it appears that revisionist was in U.A.E. at the time of service of notice

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on the permanent address which was refused by member of his family/servant but no such communication was made to him that was the reason he could not appear before the learned trial court at the time of hearing. As the fact of case came to his knowledge he moved application u/s 126(2) Cr.P.C. with an application u/s 5 Limitation Act for giving him opportunity of hearing in the case u/s 125 Cr.P.C. and setting aside the order dated 06.05.2024 but it was rejected. In pursuance to the recovery proceedings he has already deposited Rs.50,000/- out of Rs.3,50,000/- as is evident from the order dated 18.08.2025 passed by the learned trial court in Case No.954 of 2024 u/s 144(3) B.N.S.S.. Since he is ready to pay amount of Rs.1,25,000/- to the opposite party no.2 & 3 for their maintenance, therefore, in considered opinion of this court the opportunity of hearing will also be given to the revisionist before deciding the application u/s 125 Cr.P.C. finally against him and cost may be imposed on him for his inadvertence.

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As a result, the ex-parte order dated 06.05.2024 as well as the order dated 22.04.2025 passed on application u/s 5 Limitation Act are hereby set aside on condition that the revisionist will make payment of Rs.1,25,000/- to the opposite party no.2 within a period of 30 days as agreed by him and will continue to pay Rs.20,000/- monthly as interim maintenance till the case under Section 125 Cr.P.C. is finally decided after giving opportunity of hearing to both the parties. The amount so paid by the revisionist shall be adjusted in the arrears of interim maintenance from the date of application.

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Accordingly, this criminal revision is allowed.

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September 1, 2025 Ashok Gupta

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(Subhash Chandra Sharma,J.)

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Digitally signed by :- ASHOK KUMAR GUPTA High Court of Judicature at Allahabad

Shuaib Anwar v. State of U.P. and 2 Others

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Shuaib Anwar v. State of U.P. and 2 Others

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