HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Revision No. 108 of 2004 Sri Anwar Hussain @ Pappu S/o Sri Tassuwar Hussain, R/o village Shahi Meer Ganj, District Bareilly. ----Applicant/Revisionist. Versus 1. State of Uttarakhand, 2. Smt. Reshma-B W/o Sri Aanwar Husain D/o Rafique Ahmad 3. Nazim minor S/o Sri Aanwar Hussain through his Natural Guardian and mother Smt. Reshma B. Both respt. No.2 & 3 R/0 Mohammadi Chowk, Indira Nagar, P.S. Haldwani, Nainital. ------- Respondents None is present for the revisionist or for the private respondents, Sri Harish Pujari, learned Addl. G.A. is present for the State. Dated: July 17, 2008 Hon’ble Dharam Veer, J. This revision preferred u/s 397/401 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) read with Section 19(4) of the Family Court’s Act, 1984 has been directed against the judgment and order dated 17.05.2004 passed by Judge, Family Court, Nainital in Crl. Case no. 135 of 2003 Aanwar Hussain vs. Reshma B. whereby the application of the revisionist-husband moved u/s 126 (2) Cr.P.C. was rejected. 2. List is revised, but none has responded either for the revisionist or for the private respondents. Heard Sri Harish Pujari, learned Addl. Govt. Advocate for the State and perused the record. 3. From perusal of the record it reveals that the revisionist moved petition u/s 126(2) Cr.P.C. before the Trial Court with the prayer to set-aside the ex-parte order dated 30.07.2003 passed against him in a petition u/s 125 Cr.P.C. filed by the respondent no.2-wife, by which the revisionist-husband was directed to pay Rs. 600/- per month to his wife-respondent no.2 and a sum of Rs. 600/- for his minor son-respondent no.3 2 as maintenance. The ex-parte order was passed on 30.07.2003 while the petition u/s 126(2) Cr.P.C. was moved on 29.10.2003 by the revisionist with the explanation that on 08.07.2002 he was present before the Trial Court and talks for compromise took place and thereafter he proceeded for his job to Delhi, but on 30.07.2003 the said ex-party order was passed without hearing him. He was not deliberately absent on the date fixed. The wife-respondent no.2 filed her written objection with the averments that on the consent of the revisionist, the Court below directed him to pay Rs. 1,000/- per month as interim maintenance for his wife and son, but from that day he did not turn up before the Court, nor he paid any interim maintenance. On the various dates warrant of attachment and arrest warrant were issued for the recovery of the amount of maintenance, but he did not deposit any amount. When the revisionist came to know that the Court has directed to deposit a sum of Rs. 21,600/-, on 26.09.2003 he came at Haldwani at the parental house of his wife and tried to take her forcibly. On the application moved by the wife-respondent no.2 on 09.10.2003, the Court below again issued attachment warrant, but in avoiding the amount of maintenance, the revisionist moved the said petition u/s 126(2) Cr.P.C. on 29.10.2003. After hearing learned counsel for the parties, the Court below rejected the petition of the revisionist moved u/s 126(2) Cr.P.C. vide his impugned order. Feeling aggrieved with this order, the revisionist has come up in the instant revision. 4. The impugned order has been assailed inter-alia on the ground that the revisionist was not provided proper opportunity of hearing and the Court below has not considered the fact that the respondent no.2 left her matrimonial house without any justified reason. Even the revisionist is ready to keep her with him and in this regard he preferred a suit for restitution of conjugal right in the Family Court at Bareilly. But from perusal of the impugned judgment and order it comes out that when the 3 revisionist was directed to pay interim maintenance he remained continuously absent from 28.08.2002 to 30.07.2003, therefore the Court below compelled to pass the order of ex- parte against the revisionist-husband. The amount of interim maintenance was fixed keeping in view the consent of the revisionist-husband, therefore he must not avoid the same. The Court below while rejecting the petition u/s 126(2) Cr.P.C. has came to the conclusion that while awarding the maintenance, the minimum sum has been fixed to be paid by the revisionist- husband, which cannot be revised. The court below was of the opinion that for the absence of the period of one year, there is no explanation on behalf of the petitioner-revisionist. All the exercise has been adopted for avoiding payment of the maintenance amount. The Court below has given adequate opportunity of hearing to the revisionist while rejecting his petition u/s 126(2) Cr.P.C. Therefore, the Trial Court has rightly rejected the application of the revisionist filed u/s 126(2) Cr.P.C and in view of the facts and circumstances of the case the order passed by the Trial Court is correct and justified which does not warrant any interference at this stage. 5. On a bare perusal of the impugned judgment and order, I do not find any illegality, irregularity, incorrectness or impropriety in the judgment and order dated 17.05.2004 passed by the Judge, Family Court, Nainital. The revision is devoid of merits and is liable to be dismissed. 6. Accordingly, the revision is dismissed. (Dharam Veer, J.) 17.07.2008 NCM: