IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION No.257 of 2007 Smt. Reena Adhikari and another … Revisionists Versus Judge, Family Court, Distt. U.S. Nagar & another … Respondents Dated: March 19, 2009 Sri S.K. Mandal, Adv. for the revisionist Sri M.A. Khan, learned Brief Holder for the State/Respondent No.1 Sri K.S. Bora, learned counsel for Respondent No.2 HON. DHARAM VEER, J. This criminal revision, preferred by the revisionist under Section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) r/w Section 19(4) of Family Courts Act, 1984, is directed against the judgment and order dated 01.12.2007 passed by Judge, Family Court, U.S. Nagar in Misc. Case No.189/2007, Radha Kant Adhikari Vs. Smt. Rina Adhikari and another, whereby the learned Judge, Family Court has set aside the ex parte judgment and order dated 6.10.2006 passed by Judge, Family Court, U.S. Nagar in Misc. Crl. Appln. No.129/06, Smt. Rina Adhikari and another Vs. Radha Kant Adhikari. 2. Heard Sri S.K. Mandal, Adv. for the revisionist, Sri M.A. Khan, learned Brief Holder for the State/Respondent No.1 and Sri K.S. Bora, learned counsel for Respondent No.2 and perused the entire material available on record. 3. In brief, the facts of the case are that revisionist no.1 moved an application u/s 125 Cr.P.C. with the averments that she got married with the respondent on 5.9.2004 as per Hindu RITES and out of said wedlock, a child Km. Reshmi was born. Soon after the marriage, the respondent and his family members started pressurizing her to get Rs.50,000/- in dowry. In order to resolve this dispute, her parents gave a plot to the husband of revisionist no.1, a sewing machine, an interlock machine and Rs.20,000/- in cash before the persons of the village. For some days, situation remained normal but after some days, they again started demanding Rs.30,000/- more and on non-fulfillment of this demand, she was subjected to harassment. On 1.7.2006, she along with her daughter was ousted from the house by respondent and his family members. Since then she is residing at her parental house. The revisionist was said to be the owner of some agricultural land and his total income was shown to be about Rs.60,000/- for six months. With all these averments, an amount of Rs.3,000/- per month for herself and Rs.2,000/- per month for her daughter was sought as maintenance allowance by revisionist no.1 against the respondent. The service of notice upon the respondent was made through publication in daily newspaper Amar Ujala and the service was deemed to be sufficient. Learned Judge, Family Court, U.S. Nagar after perusing the material on record vide his judgment and order dated 6.10.2006 allowed the application moved by revisionist no.1 ex parte and directed the revisionist to pay Rs.1,000/- per month for revisionist no.1 and Rs.500/- per month for revisionist no.2, till she attains majority, from the date of application i.e. 6.7.2006. Thereafter, the respondent-husband moved an application u/s 126(2) of Cr.P.C. with a prayer to set aside the ex parte judgment and order dated 6.10.2006 and to restore the case to its original number. After hearing counsel for the parties and appreciating the material on record, learned Judge, Family Court, U.S. Nagar vide its judgment and order dated 1.12.2007 allowed the application moved by respondent u/s 126(2) Cr.P.C. and set aside the ex parte judgment and order dated 6.10.2006 and restored the case to its original number at the cost of Rs.400. Feeling aggrieved, the revisionists have filed the present revision before this Court. 4. Sri S.K. Mandal, learned counsel for the revisionist argued that the court below has erred in law in setting aside the judgment and order dated 6.10.2006. I do not find any force in this argument. On 6.7.2006, the notices were issued to the respondent u/s 125 Cr.P.C. The registered post returned with the remark that the recipient is not said to be living at the address for the last three months and the same be returned to the sender. Besides this the report of P.S. Shaktifarm was also received upon the summons according to which the father of respondent had informed that he has no idea about the whereabouts of respondent-Radha Kant Adhikari and he has been evicted from the house and property. Lastly after publication of notice in the newspaper, order for ex parte proceeding was passed against the respondent and on 6.10.2006, the ex parte order was passed against him. In the above-context, the court below has rightly recorded a finding that the summons were not personally served upon the respondent. The court below has further rightly held that it is the first and foremost duty of the court to decide the case on merits. As such, the court below rightly allowed the application moved by respondent u/s 126(2) Cr.P.C. at the cost of Rs.400/- and has right set aside the ex parte judgment and order dated 6.10.2006 and also rightly restored the case to its original number. 5. In the above context, I do not find any illegality, impropriety or incorrectness in the impugned judgment and order dated 01.12.2007 passed by Judge, Family Court, U.S. Nagar in Case No.189/07. 6. As such, the revision is devoid of merits and is accordingly dismissed. (Dharam Veer, J.) March 18, 2009 Rajeev Dang