((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.100 OF 2008 Amjad Jafar Khan Petitioner versus Mrs.Shabana Amjad Jafar Khan and another Respondents Shri R.J.Thorat for petitionr. Shri A.T.Zaveri, P.P. for State. M.H.Yajnik i/by Purnima Bhatia for respondent. CORAM : SMT.RANJANA DESAI AND SMT.R.P.SONDURBALDOTA, JJ. DATE : 06th June 2008 PC : 1. Rule. Respondents waive service. By consent of the parties taken up for hearing forthwith. 2. The petitioner is the original respondent- husband in M.J.Petition No.E-42 of 2007 which was filed by the first respondent-wife herein for maintenance under section 125 of the Code of Criminal Procedure. In this criminal revision application he has impugned order dated 22nd February 2008 whereby the petition was partly allowed and the petitioner was ordered and directed to pay Rs.5,000/- to the respondent and Rs.3,000/- to the minor son Jafar @ Anis from the date of the order. ((-2-)) 3. We have heard at some length learned counsel for the petitioner and learned counsel for the respondents. There were some arrears of maintenance. As directed earlier, today, an amount of Rs.9,000/- (Rs.Nine thousand only) has been brought by the petitioner in this Court. Counsel for the petitioner has handed over the said amount being arrears of maintenance to the first respondent Shabana Amjad Jafar Khan who is present in the Court. 4. The basic grievance of the petitioner in this petition is that the impugned order is an ex-parte order. Learned Judge has observed in the order that the petition was filed on 3rd January 2007. Thereafter the petitioner was duly served. He remained present on 26th February 2007. He then remained absent on three to four occasions and failed to file his written statement. She has further observed that the petitioner remained present on 17th July 2007 and 16th August 2007. He did not file reply to the interim application preferred by the respondent. The learned Judge has further observed that on 13th September 2007 she passed an order for interim maintenance in ((-3-)) the presence of the petitioner as he failed to file his reply. The petitioner was thus given sufficient opportunity to file his reply to the petition. Despite the indulgence shown the petitioner failed to file his reply. In the circumstances, by the impugned ex-parte order, the petition was allowed and the impugned order came to be passed. 5. Learned counsel for the petitioner contended that since the impugned order is an ex-parte order, in the interest of justice, it may be set aside. He submitted that the petitioner’s written statement is ready. He may be permitted to file his written statement and direction be given to the Trial Court to decide the matter in accordance with law. 6. Learned counsel for the respondent has vehemently opposed this application. She submitted that the conduct of the petitioner disentitles him from seeking any indulgence from this Court. She submitted that the petitioner has persistently remained absent. The respondent has incurred lot of expenses on litigation and has been put to great inconvenience. The impugned order is just and ((-4-)) legal. Therefore, this application may be rejected. 7. It is true that the petitioner has not been diligent. He ought to have prosecuted this litigation more carefully. He ought to have filed his written statement in time. However, considering the fact that the impugned order is an ex-parte order, we are of the opinion that in the interest of justice it must be set aside. The petitioner must be given an opportunity to defend the application. However, we must take judicial notice of the fact that the respondent has incurred lot of expenses on litigation. In the circumstances, in our opinion, following order will meet the ends of justice. 8. ORDER :- (a) The impugned order dated 22nd February 2008 passed in M.J.Petition No.E-42 of 2007 is set aside; (b) The petitioner is present in the Court. He states that the written statement duly affirmed by him will be filed in the Lower Court. The ((-5-)) Family Court shall accept the written statement only after being satisfied that as directed by us in paragraph 7(c), amount of Rs.20,000/- is paid by the petitioner to the respondent. The Family Court shall allow the respondents to file rejoinder, if any. The Family Court shall then give an opportunity to both the sides to lead evidence, if necessary, and dispose of the application in accordance with law independently. (c) This order will, however, be subject to the petitioner handing over a sum of Rs.20,000/- (Rs.Twenty thousand only) as litigation costs to the respondent. Payment of Rs.20,000/- is condition precedent to the Family Court hearing the matter afresh. order. The said payment shall be made within a period of three weeks from today. The petitioner shall pay the said amount to the respondent or her counsel through his counsel Mr.R.J.Thorat in cash. If the said amount is not paid as directed, our order setting aside the impugned order shall not take effect and the impugned order shall stand confirmed; (d) The Family Court is directed to hear and ((-6-)) dispose of the application within a period of eight months from the date of receipt of this order. During the pendency of the application, the petitioner shall pay an amount of Rs.3,000/- (Rs.Three thousand only) per month to the respondent and their son Jafar @ Anis as per interim order dated 12th March 2008 passed in this matter by this Court; (e) The petitioner shall deposit the amount of Rs.3,000/- per month in the Family Court which can be withdrawn by the respondent without furnishing security. Monthly maintenance be deposited by 10th of each month. (f) The petition is disposed of accordingly. JUDGE JUDGE