SCR.A/58620/2005 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 586 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : ======================================================= NAVNIT KAUNWAR ISHWARSINH RAO & 1 - Applicant(s) Versus ISHWARSINH MODSINH RAO & 1 - Respondent(s) ======================================================= Appearance : MS RASHMI R JOHRI for MR RAJESH K SHAH for Applicant(s) : 1-2, MS RIZVANA V BUKHARI for Applicant(s) : 1 - 2. RULE SERVED BY DS for Respondent(s) : 1, MR AJ DESAI APP for Respondent(s) : 2, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA Date : 17/09/2008 ORAL JUDGMENT 1. Though respondent no.1-husband has been duly served, he has chosen not to appear in the matter either personally or by advocate. 2. Heard learned counsel for the applicants, Ms.Rashmi R. Johri for Mr.Rajesh K. Shah and Learned Additional Public Prosecutor, Mr.A.J. Desai for the respondent no.2. 3. The present applicant had filed an application being Criminal Misc. Application No.676/2002 under Section 125 of the Code of Criminal Procedure, 1973 for the maintenance for herself and her minor SCR.A/58620/2005 2/3 JUDGMENT daughter, Riddhi, wherein the process was issued, however, though notice could not be served, the dates for hearing were given and as the applicant could not remain present on the date of hearing though notice dated 07.07.2003 was issued directing her to remain present before the Court on due dates, as a last resort, the Principal Judge, Family Court No.1, Ahmedabad dismissed the said application for default, which gave rise to file present application. 4. I have gone through the application filed by the applicant, which shows that the applicant has filed an application for maintenance for herself and her minor daughter against her husband, wherein process was issued. Record shows that said process could not be served upon the husband of the applicant and as she was not remaining present before the Court on due dates, the matter was dismissed for default. It is required to be noted that the Court ought to have waited further into the matter and/or to see that notice should be served to the husband, but the Court has accepted the last resort and dismissed the matter for default without entering into merits or demerits of the matter that it is an application for maintenance, wherein while dismissing the matter SCR.A/58620/2005 3/3 JUDGMENT for default, the Court should be slow and generally tried to avoid the same. 5. In view of the aforesaid facts and circumstance of the case, this application is allowed. The order passed by the Principal Judge, Family Court No.1, Ahmedabad in Criminal Misc. Application No.676/2002 below Exh.1 dated 28.12.2004 is quashed and set aside and Criminal Misc. Application No.676/2002 is also hereby restored. 6. Rule is made absolute to the aforesaid extent. 7. The applicant is directed to remain present before the concerned Family Court, Ahmedabad. The concerned Family Court, Ahmedabad is also hereby directed to inform the applicant regarding the same. (R.P.DHOLAKIA, J) /patil