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Bombay High CourtIndian Cases

Kalpana Omprakash Nighot vs Omprakash Bhauraoji Nighot on 6 September 2001

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Bombay High Court
Kalpana Omprakash Nighot vs Omprakash Bhauraoji Nighot on 6 September, 2001
Equivalent citations: 2002BOMCR(CRI)~, (2002)1BOMLR709, 2002(1)MHLJ79
Author: R.K. Batta
Bench: R.K. Batta
JUDGMENT
1. The applicant had filed Miscellaneous Criminal Case No. 318 of 1994 for recovery of arrears of maintenance. The applicant had paid process fee for issuing notice to the non-applicant and the applicant continued attending the Court till 21-11-1996. The case of the applicant is that in November 1996, her father fell ill and she had to go to her father’s place where she had to stay till September 1997. The said application was dismissed on 30th September 1997. The applicant filed application for restoration which was rejected vide order dated 19-10-2000 on the ground that since 1994 the applicant had not taken steps for service on the non-applicant that the applicant had not filed any documentary evidence about illness of her father and that Rule 22 of the Family Court Rules 1988 clearly empowers the Court to dismiss the proceedings in case the party fails to take effective steps for service of notice within a period of six months. Learned Advocate for the applicant has urged before me that the applicant had paid the process fee for service on the non-applicant and that the trial Court was not justified in refusing to restore the said application. She pointed out that the trial Court should have taken a liberal view of the matter since the applicant has no means to maintain herself and that she is not getting the maintenance which is awarded in her favour. Relying upon the judgments of Allahabad High Court in Shabihul Hasan Jafari v. Zarin Fatma, reported in 1 (2001) DMC 1 and of Punjab and Haryana High Court in Kamla Devi and Ors. v. Mehma Singh reported in 1989 Cri.L.J. 1866, it is submitted that the application be ordered to be restored.

2. Learned Advocate for the respondent has vehemently objected to the restoration of the application on the ground that the applicant had not taken steps to effect service on the non-applicant since 1994 till the application was dismissed on 30-9-1997 and that no sufficient cause has been shown for restoration. He also pointed out that in terms of Rule 22 of the Family Court Rules, 1988, the trial Court had dismissed the application since the service on the non-applicant was not effected within six month and for that matter for almost three years. He, therefore, contends that the revision application be rejected.

3. The provisions of maintenance contained in Section 125, Criminal Procedure Code are primarily meant to mitigate the sufferings of destitute wife and others in their livelihood. Once maintenance is granted the wives and other persons referred to in Section 125, Criminal Procedure Code should get the maintenance at the earliest so as to mitigate the hardship faced by them. It is to be noticed that in practice all sorts of hurdles are placed when recovery is sought to be made thereby making the provisions of Section 125 ineffective. These matters are required to be liberally construed as the same are for the benefit of destitute wife, children etc. and a very strict view taken in the matter would militate against the interest of justice and the purpose for which the provisions of maintenance under Section 125 have been incorporated in Criminal Procedure Code. It is no doubt true that the Family Court Rules do provide for dismissal of the application for recovery of maintenance if service is not effected within six months, but many a times it may not be within the hands of the party filing application for recovery of maintenance to effect service. In the case under consideration, it appears that the process fee has been paid for effecting service but it appears that the service was not effected. According to the applicant, she continued to attend the Court till 21-11-1996, but on account of illness of her father, she had gone to her native place and when she returned, she found that the application has already been dismissed on 30th September 1997. In respect of the restoration application, the trial Court should have taken a liberal view of the matter in the light of purpose sought to be achieved by the provisions of Section 125, Criminal Procedure Code and non filing of documentary evidence as to illness of her father, by itself, would not be sufficient to dismiss the application for restoration especially on account of the fact that the applicant had continued to attend the Court till 21-11-1996.

4. In the facts and circumstances, I am of the view that the trial Court ought to have restored the application for the recovery of maintenance. In this view of the matter, revision is allowed and the impugned order dated 19-10-2000 is hereby set aside. The restoration application is allowed and consequently the order of dismissal of Miscellaneous Criminal Case No. E-521/1996 is also set aside. The Judge, Family Court shall now deal with Miscellaneous Criminal Case No. E-521/1996. Parties shall appear before the Judge, Family Court, Nagpur on 1st October 2001 at 12.00 noon.

5. Revision allowed.