Partly allowed

Nitin @ Krishnakant Sambhaji Bhujbal v. Jaya Nitin @ Krishnakant Bhujbal and Another

Bombay HC3 Sept 2013WP/126/2013

Case brief

AI extract

What is this about?

The High Court partly allowed a writ petition maintaining that the petitioner, who was unheard in an ex-parte maintenance proceeding, should apply to the Magistrate to set aside the order under Section 126 CrPC without limitation barriers.

What did the court decide?

Petitioner directed to apply to set aside the ex-parte order within one month; Magistrate to entertain and decide on merits ignoring limitation objections.

Nitin @ Krishnakant Sambhaji Bhujbal Vs Jaya Nitin @… — Maintenance and Alimony | Bombay HC (2013)

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1 WP126.13.odt

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 126 OF 2013

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NITIN @ KRISHNAKANT SAMBHAJI BHUJBAL age 29 years, Occ. Labourer R/o H.No.46/2, Hero-Honda Guarrage Chandan Nagar, Pune 411 014. Petitioner. (orig. opponent )

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VERSUS

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JAYA NITIN @ KRISHNAKANT BHUJBAL age 27 years, Occ. Household, R/o C/o Dhondiba Bhausaheb Zagade, At Post Panavali, Tq. Parner, Dist. Ahmednagar.

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THE STATE OF MAHARASHTRA, (Copy to be served on the Public Prosecutor, High Court of Bombay Bench at Aurangabad). ...Respondents..

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=====

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Mr. N.C. Garud Advocate for Petitioner Respondent no.1 – Served - absent Mr. P.N.Muley APP for Respondent No.2

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=====

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CORAM : ABHAY M. THIPSAY, J. Dated: September 03, 2013 =====

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ORAL ORDER :-

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Heard the learned counsel for the petitioner. None appears for the respondent no.1, inspite of service. Under the circumstances, after hearing the learned counsel for the applicant and the learned APP and by consent,

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2 WP126.13.odt

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petition is disposed of finally, at the admission stage itself.

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The petitioner is the husband of the respondent no.1. The respondent no.1 filed an application for maintenance under the provisions of section 125 of the Code, against the present petitioner, which was, after holding due inquiry in the matter, allowed by the Magistrate. The Magistrate directed that the respondent (present petitioner) shall pay maintenance @ Rs.500/- p.m. to the applicant before the Magistrate i.e. the respondent no.1 herein. Admittedly, the petitioner had not contested the proceeding under section 125 of the Code and the order awarding maintenance came to be passed without his participation in the proceedings. The petitioner challenged the order passed by the Magistrate by filing an application for revision in the Court of Sessions, but, the Court of Sessions held that, it had been filed beyond the period of limitation and that, there was no sufficient cause for condoning the delay. Holding so, the Sessions Court dismissed the application for condonation of delay and did not entertain the revision application on merits. It is under these circumstances, that the petitioner has approached this Court invoking its Constitutional jurisdiction.

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Though learned Magistrate was perfectly justified in proceeding with the maintenance proceedings in the absence of the petitioner (respondent before the Magistrate), the fact remains that the petitioner was not heard in the matter. Under the proviso to Section 126 of the code, the petitioner could very well approach the Magistrate for setting aside the order which came to be passed ex-parte, as the relevant provisions empowers the Magistrate to set aside the order, for ‘good cause shown’ . Apparently, the petitioner, without availing of this remedy moved the Court of Sessions. Since that application was belatedly filed, the Court of Sessions did not entertain the same on merits.

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3 WP126.13.odt

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The learned counsel for the petitioner submits that the petitioner is armed with a decree of Restitution of Conjugal Rights passed in his favour by the Civil Court.

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After considering all the relevant aspects of the matter, it appears proper to me that, the petitioner should be directed to make an application before the Magistrate for setting aside the ex-parte order of maintenance passed by the Magistrate, as contemplated under the proviso to sub section (2) to Section 126 of the Code of Criminal Procedure.

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6. In the result, the petition is partly allowed.

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The petitioner shall make an application before the Magistrate to set aside the order in question, and in the event of such an application being made by the petitioner before the Magistrate within a period of one month from today, the learned Court shall entertain the same and consider it on merits, without raising any question of limitation. The learned Magistrate shall apply his own mind and determine whether good cause for setting aside the impugned order has been made out by the petitioner and shall not be influenced in any manner by the observations made by the revisional Court.

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7. Petition is disposed of in aforesaid terms.

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( ABHAY M. THIPSAY, J. )

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aaa/

Nitin @ Krishnakant Sambhaji Bhujbal v. Jaya Nitin @ Krishnakant Bhujbal and Another

Case brief

What is this about?

What did the court decide?

Nitin @ Krishnakant Sambhaji Bhujbal v. Jaya Nitin @ Krishnakant Bhujbal and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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