Allowed

Arvind Kishore v. Smt Neha Mathur and Anr.

Rajasthan HC2 May 2018CRLMP/3864/2017

Case brief

AI extract

What is this about?

The High Court set aside two ex-parte High Court orders dated 18.03.2017 and 16.09.2017 passed by the Family Court in Bikaner under Section 125 Cr.P.C., holding that the petitioner abroad was denied a fair opportunity of hearing. Directions were issued for the petitioner to deposit an amount as arrears and the trial court to rehear the matter.

What did the court decide?

Impugned orders dated 18.03.2017 and 16.09.2017 set aside; petitioner directed to deposit Rs.10 lacs; trial court to decide Section 125 Cr.P.C. application afresh.

Arvind Kishore Vs Smt Neha Mathur and Anr. — Maintenance and Alimony | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Criminal Misc(Pet.) No. 3864 / 2017

¶3

Arvind Kishore S/o Dr. Basant Kishore, Resident of Ajmera Garden, Kings Road, Ajmer Road, Jaipur (at Present Residing At C/o 1278, East Latham Avenue, Hemet, California 92543, United States of America (U.S.A.), Through His Power of Attorney Holder Dr. Basant Kishore S/o Sh. Chiranji Lal, Resident of 35 Ajmera Garden, Kings Road, Ajmer Road, Jaipur.

¶4

----Petitioner

¶5

Versus

¶6

Smt. Neha Mathur D/o Prem Narain Mathur, Resident of Ward No. 39 B- 2/89, Rajmata Sudershna Nagar, Bikaner.

¶7

Anay S/o Dr. Arvind Kishore, Minor Through is Natural Guardian Mother Smt. Neha Mathur D/o Prem Narain Mathur, Resident of Ward No. 39 B-2/89, Rajmata Sudershna Nagar, Bikaner.

¶8

----Respondents

¶9

For Petitioner(s) : Dr. Sachin Acharya

¶10

For Respondent(s) : Mr. Parvej Moyal

¶11

HON'BLE MR. JUSTICE VIJAY BISHNOI

¶12

Order

¶13

02/05/2018

¶14

This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner essentially being aggrieved with the order dated 18.03.2017 passed by the Family Court No.2, Bikaner (hereinafter to be referred as the ‘trial court’) in Criminal Regular Case No.18/2016, whereby while deciding the application under Section 125 Cr.P.C., it has directed the petitioner to pay monthly maintenance to the respondents to the tune of Rs.1,20,000/-

¶15

It is noticed that the order dated 18.03.2017 has been passed by the trial court ex-parte against the petitioner while observing that he did not appear before it despite service of notice.

¶16

The petitioner has also challenged the order dated

¶17

(2 of 5)

¶18

[CRLMP-3864/2017]

¶19

16.09.2017 passed by the trial court, whereby his applications filed through Advocate under Sections 126 read with Section 127 (2) Cr.P.C. and under Section 13 of the Family Court Act have been dismissed and the prayer of the petitioner for setting aside exparte order dated 18.03.2017 and allowing him to represent through Advocate has also been dismissed.

¶20

Learned counsel for the petitioner has submitted that as a matter of fact, the petitioner was serving as a Doctor in U.S.A. at the time when the notices of the proceedings under Section 125 Cr.P.C. were issued. It is submitted that the said notices were never served upon the petitioner but were served upon his father, who is residing at Jaipur. Learned counsel for the petitioner has submitted that every person has a right of hearing in any proceedings against him, however, in the present case, the trial court has not accorded any opportunity of hearing to the petitioner and has illegally passed the ex-parte impugned order.

¶21

Learned counsel for the petitioner has further submitted that as a matter of fact, respondent No.1 is an Engineer and working in a private firm and she is earning handsome amount by which she can maintain herself. It is also submitted that respondent No.1 is also acting in the movies and from this also, she is earning handsome amount.

¶22

Learned counsel for the petitioner has submitted that the trial court without taking into consideration this aspect of the matter has illegally passed the impugned orders without providing opportunity of hearing to the petitioner.

¶23

Learned counsel for the petitioner has therefore prayed that

¶24

(3 of 5)

¶25

[CRLMP-3864/2017]

¶26

the impugned orders dated 18.03.2017 and 16.09.2017 passed by the trial court be set aside and the matter be remanded to the trial court for deciding afresh after providing opportunity of hearing to the petitioner.

¶27

Per contra, learned counsel for the respondents has opposed this criminal misc. petition and argued that though the petitoner was having knowledge about the pendency of the proceedings under Section 125 Cr.P.C., but he deliberately did not appear before the trial court, therefore, there is no illegality in the impugned order dated 18.03.2017. It is also argued that as the petitioner himself had not presented applications under Section 126 read with Section 127(2) Cr.P.C. and Section 13 of the Family Court Act, hence, the trial court has rightly rejected the applications vide order dated 16.09.2017.

¶28

Learned counsel for the respondents has also argued that as a matter of fact, till date, around Rs.40 lacs regarding maintenance is due against the petitioner and without paying the same he has approached this Court through power of attorney, therefore, this criminal misc. petition is not at all maintainable and liable to be dismissed.

¶29

Having heard the learned counsel for the parties and having gone through the impugned orders, this Court is of the opinion that it is not in dispute that at the time when the notices under Section 125 Cr.P.C. were issued to the petitioner by the trial court, he was in U.S.A. and notices upon him were not served personally. Even at the time of passing of order dated 18.03.2017 also, the petitioner was in U.S.A.

¶30

(4 of 5)

¶31

[CRLMP-3864/2017]

¶32

Similarly, on 16.06.2017, when the applications under Sections 126 read with Section 127(2) and Section 13 of the Family Court Act are decided, the petitioner was not in India.

¶33

It is settled that if a person justifies his absence in any proceedings before a Court satisfactorily, opportunity of hearing should be provided to him or her before passing any adverse order against him or her.

¶34

As observed earlier, as the petitioner was serving in the U.S.A. at the relevant time when the impugned orders were passed against him, and, therefore, no opportunity of hearing was provided to him. Notices of the proceedings under Section 125(2) Cr.P.C. were not served upon him and the same were served upon his father and in the given circumstances, it cannot be said that service of notices upon him was proper.

¶35

In such circumstances, this criminal misc. petition is disposed of with the following directions:-

¶36

The impugned orders dated 18.03.2017 and 16.09.2017 are set aside subject to the condition that the petitioner will make a payment of Rs.10 lacs against the arrears of maintenance to the respondents either by depositing the same before the trial court or by delivering a demand draft in the name of the respondent No.1 on or before 16.05.2018.

¶37

If the petitioner deposits the amount of Rs.10 lacs with the trial court, the trial court shall disburse the same to the respondents upon moving an appropriate application.

¶38

The trial court shall decide the application filed on behalf of the

¶39

(5 of 5)

¶40

[CRLMP-3864/2017]

¶41

respondents under Section 125 Cr.P.C. afresh after providing opportunity of hearing to the petitioner. It is made clear that the trial court shall decide the application under Section 125 Cr.P.C. afresh without being influenced by the observations made in the orders dated 18.03.2017 and 16.09.2017 expeditiously, preferably by 31.08.2018.

¶42

The petitioner and the respondents are directed to co-operate with the proceedings and are also directed not to seek unnecessary adjournments in the matter.

¶43

The petitioner is also free to move application under Section 13 of the Family Court Act, 1984 with a prayer to obtain service of lawyer. If any such application is filed on behalf of the petitioner, the trial court shall decide the same while taking into consideration the law laid down by this Court in Civil Misc. Appeal No.503/2003 decided on 19.05.2004 titled as Laxmi Kanwar vs.

¶44

Laxman Singh.

¶45

Needless to say, the amount of Rs.25 lacs (Rs.15 lacs deposited by the petitioner pursuant to the directions given by this Court on 14.02.2018 and Rs.10 lacs which the petitioner is going to deposit pursuant to this order) will subject to the adjustment pursuant to the fresh order order passed by the trial court on the application under Section 125 Cr.P.C.

¶46

Stay petition also stands disposed of.

¶47

(VIJAY BISHNOI)J.

¶48

Taruna

Arvind Kishore v. Smt Neha Mathur and Anr.

Case brief

What is this about?

What did the court decide?

Arvind Kishore v. Smt Neha Mathur and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bholaram Jat Vs State and Anr.

Onkarmal Vs State and Anr.

Priyanka Vs Praveen Kumar

Dropati Vs State and Anr.

Kasam Ali Vs State

Bhupendra Singh Vs State