1 CR.APLN.76.10-REVN.179.10.odt mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CRIMINAL APPLICATION NO.76 OF 2010 IN CRIMINAL REVISION APPLICATION (ST).NO.179 OF 2010 Milind Jugalkishor Tiwari ...Applicant (Orig. Respondent) Vs. Nalini Milind Tiwari & Ors. ...Respondents (Orig. Petitioners) Mr. D.G. Dhanure h/f. Ms. J.D. Dhanure Advocate for the Applicant Mr. S.G. Shirsat Advocate for Respondents 1 and 2 CORAM : SMT. ROSHAN DALVI, J. DATED : 11TH FEBRUARY, 2011 P.C. : 1. The Applicant husband has challenged the order of the learned Principal Judge, Family Court, Mumbai dated 15 th October 2009 passed in Misc. Application No.33/2009 which was an application for restoration of an application for condonation of delay which came to be rejected for want of appearance of the Applicant. That application for condonation of delay being Application No.65/2008 was for condonation of delay in filing an application under Section 127 of the Cr.P.C. 2 CR.APLN.76.10-REVN.179.10.odt 2. The parties were married on 17 th April 1998. They had a child on 14 th March 1999. 3. The husband failed to maintain the wife and child. The wife filed maintenance application on 29 th March 2005. The husband filed his reply. The husband thereafter never appeared before the Court. The application came to be allowed Ex-parte on 23 rd July 2007. The husband was directed to pay maintenance of Rs.4000/- to wife and Rs. 4000/- to child totaling to Rs.8000/- per month. The husband failed to pay. The wife took out an execution application. 4. The husband filed an application before the Division Bench of this Court for revision of the order of maintenance passed Ex- parte. The Division Bench observed that the husband filed his reply, but did not cross examine the wife who examined herself as a witness. He did not give any explanation why he could not cross examine the wife. He did not file any explanation why he did not apply to the trial Court to grant him appropriate leave to cross examine the witness. His revision application came to be dismissed on 11 th March 2008 by the Division Bench of this Court. The order of the Division Bench has not been challenged. His application having been dismissed, the order on the application for maintenance came to be final. 3 CR.APLN.76.10-REVN.179.10.odt 5. The wife had to pursue her execution application. She has taken out as many as 5 recovery darkhasts(RDs). A sum of Rs. 6.53 lakhs is payable by way of maintenance pursuant to the order passed 3½ years ago on 23 rd July 2007. 6. The husband applied for setting aside the order on that application under Section 127 of the Cr.P.C. That was highly delayed. He took out an application for condonation of delay in filing that restoration application being application No. 65/2008. He failed to appear. That application for condonation of delay came to be dismissed for default on 30 th January 2009. The delay was not condoned. Hence the application for restoration came to a close. That application cannot be taken up and heard because the delay has not been condoned. 7. Consequently, to set aside that order dismissing his application for condonation of delay for default he took out another application being Application No.33/2009, which has come to be rejected. The order of rejection is challenged in this Writ Petition. 8. The husband has sought to reply to the wife’s application and failed to prosecute it. The husband has sought to make applications after applications and failed to prosecute them. 4 CR.APLN.76.10-REVN.179.10.odt This has gone on from 2005 when the wife filed the application until 2009 when his last application for setting aside the order passed in his application for condonation of delay came to be rejected. 9. The husband’s applications are an abuse of Court process. His Advocate argued that the husband was present before the Court and yet it was shown that he was absent. The order of the court dated 30 th January 2009 shows the husband’s continuous absence. In fact it was, but natural, if the husband was absent, that his application for delay came to be dismissed. The fact that it was filed under Section 127 of Cr.P.C for setting aside the order passed under 125 of Cr.P.C. itself shows that he was absent when the order was passed. His absence is further reflected in the admitted facts that he has not cross examined his wife. He claims that no opportunity was given to him. However the order of the Division Bench of this Court shows that Application was not filed by him and explanation was not given by him why he could not cross examine his wife. 10.The learned Judge has considered the conduct of the husband shown in his continuous absence and his continuous defaults. 11.These are the aspects required to be considered in an application for setting aside the order passed in an application 5 CR.APLN.76.10-REVN.179.10.odt for condonation of delay which was taken out in an application for setting aside the main order passed. The noting of the learned Judge that opportunities were given, but were not followed that the husband has remained absent as per the roznama must be accepted. The reasons of the learned Judge in para 29 of his order, that there is no explanation for the delay, the delay is quite substantial, and the fact that he had remained continuously absent are sufficient and correct to reject his application. The impugned order does not suffer from any infirmity. It is not required to be interfered with. The Revision Application is dismissed. 12.It may be mentioned that the Advocate for the Applicant continuously questioned the court as to what would happen to his application under Section 127 of Cr.P.C. It may be mentioned for his clarification that his application under Section 127 Cr.P.C was long delayed. His application for condonation of that delay was dismissed for default. His application to set aside that order has been correctly rejected. Hence his application for setting aside the main order of maintenance and for restoration of the application under Section 127 Cr.P.C cannot be heard and the order passed under Section 125 of the Cr.P.C has come to be final. The Applicant shall pay up the maintenance arrears that he has run up, which has accrued to Rs.6.53 lakhs and for which 5 recovery darkhasts have been filed by the constrained wife. 6 CR.APLN.76.10-REVN.179.10.odt 13.It may also be mentioned that the Advocate on behalf of the Applicant continuously stated to Court that the Applicant made application under Right to Information Act in a school in which the Respondent wife is stated to have been employed part time as well as full time. The Right to Information inquiry has been made only as late as on 18 th February 2010. That is well after the impugned order was passed. The Advocate desired the court to see certain revelations of the Applicant husband. That would be outside the jurisdiction of this Criminal Revision Application and cannot be seen by this Court. Once the Applicant obeys the order of the Family Court and pays up the arrears of maintenance his application, if any, made for modification of the order of maintenance upon his information obtained as late as in 2010 may be considered by the Competent Court, if made. 14.With this explanation given in this order because of the argument on behalf of the Applicant, the application is dismissed. 15.Application to allow the Applicant husband to pay 50% of the amount of maintenance granted by the Family Court is rejected. (SMT. ROSHAN DALVI, J.)