RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION No. 223 of 2005 Shobhit Saxena .…. Revisionist Versus State of Uttaranchal & Anr. …… Respondents April 21, 2009 Mr. Siddartha Sah, Advocate for the revisionist. Mr. M.A. Khan, Brief Holder for the State/respondent no. 1. Mr. Lalit Miglani, Advocate holding brief of Mr. Pankaj Miglani, Advocate for the respondent no. 2. HON’BLE DHARAM VEER, J. This criminal revision is directed against the judgment and order dated 21.9.2005 passed by the Judge, Family Court, Rudrapur, U.S. Nagar in Misc. Criminal Case No. 63 of 2004, Smt. Preety Saxena v. Shobhit Saxena under Section 125 Cr.P.C., whereby the learned Judge, Family Court, Rudrapur has ex parte allowed the application of Smt. Preeti Saxena/respondent no. 2 and awarded her maintenance amounting to Rs. 5000/- per month from the date of making the said application i.e. 24.3.2004. 2. Facts, as set out before the trial court, are that revisionist Shobhit Saxena is a doctor practicing in homeopathy. He got married to Smt. Preeti Saxena/respondent no. 2 on 22.11.2002 as per Hindu rituals. Revisionist was not satisfied with the articles and money given to him as dowry at the time of marriage. Soon after the marriage, revisionist asked her wife Smt. Preeti Saxena to bring rupees ten lakhs from her parents so that he may construct a nursing home. When the payment of the aforesaid was denied to the revisionist, he started torturing his wife and threatened to kill her in 2 case of non-fulfillment of his said demand. Respondent no. 2, being hit by the revisionist and his family members by a lathi, suffered fracture in her left leg. All efforts of conciliation by in-laws of revisionist failed and revisionist kept torturing the respondent no. 2. Thereafter on 17.1.2004, she lodged the report against the revisionist and her in-laws. Simultaneously an application under Section 125 Cr.P.C. was also moved on behalf of respondent no. 2 claiming maintenance of Rs. 5000/- per month alleging that she has no source of livelihood, whereas revisionist’s monthly income is not less than Rs. 20,000/-. 3. Revisionist filed his objections before the trial court but failed to appear in person on 1.7.2005 although his counsel was present on the that date, but trial court drawn ex parte proceedings against him. On the next date of hearing i.e. on 29.7.2005, revisionist personally appeared before the trial court along with his counsel and moved an application to set aside the ex parte proceedings drawn against him. But the said application of the revisionist was rejected on 2.9.2005 citing the reason that no one on his behalf appeared before the court. Thereafter vide the impugned ex part judgment and order dated 21.9.2005, revisionist was directed to pay Rs. 5000/- per month to the respondent no. 2 towards her maintenance with effect from the date of making the application for maintenance holding the monthly income of revisionist at Rs. 20,000/- in the absence of any rebuttal evidence. 4. I have heard learned Counsel for the parties and perused the entire material available on record. 5. Learned Counsel for the revisionist argued that the revisionist did not appear on 1.7.2005, but the 3 counsel for the revisionist was present before the court below on that day and an application, in this regard, on behalf of revisionist was also moved. In spite of this, ex parte proceedings were drawn on the same date against the revisionist. Learned Counsel for the revisionist further submitted that revisionist appeared before the court below on the next date of hearing i.e. on 29.7.2005 and moved an application to set aside the ex parte proceedings drawn against him, but the case was adjourned citing the reason that the respondent no. 2/applicant was not present, who had sought the adjournment and, therefore, reconciliation proceedings could not be proceeded with, although efforts of reconciliation had already failed and averment to the same effect was also made by the revisionist in his application. Learned Counsel for the revisionist submitted that proper opportunity to lead the evidence in rebuttal may be provided to the revisionist. 6. It is settled law that due opportunity of hearing shall be provided to parties. Therefore, in view of the facts and circumstances of the case narrated above, I am of the considered opinion that the impugned judgment and order dated 21.9.2005 is liable to be set aside only on the ground that the same has been passed ex parte and revisionist is entitled to get the opportunity of hearing. 7. Consequently, without commenting on the merits of the case and in the interest of justice, the impugned judgment and order dated 21.9.2005 is hereby quashed. The matter is remanded to the lower court with direction to decide the same afresh and expeditiously after affording proper opportunity of hearing to the parties. 4 8. Revision is allowed. No order as to costs. Parties are directed to appear before the trial court on 5th May, 2009. Interim order dated 17.11.2005 stands vacated. (Dharam Veer, J.) 21.04.2009 PRABODH