IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.22437 of 2011 ====================================================== Vidya Shankar Singh, son of Mahendra Singh, Resident of Village Kharika, P.S. Bidupur, District Vaishali at present residing at B-43, Thapalia Niwas, Near Bakata Shiva Temple, New Delhi. .... .... Petitioner Versus 1. The State of Bihar through the Chief Secretary, Bihar, Patna. 2. Kamal Kabita @ Kabita Kumari wife of Vidya Shankar Singh daughter of Late Ganesh Prasad Singh. 3. Princee Kumari, daughter of Vidya Shankar Singh. Both Resident of Village Kharika, P.S. Bidupur, District Vaishali, at present residing at village Malkallipur Deodhi, P.S. Vidyapati Nagar, District-Samastipur. .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Najmul Hoda, Advocate For the Respondent State : Ms. Priya Gupta, A.C. to AAG-12 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2. 22-12-2011 Feeling aggrieved by judgment and order dated 16th April 2010 passed by the learned Family Court, Vaishali at Hajipur in Maintenance Case No. 134 of 2006, the respondent husband has approached this Court in the present Petition filed under Article 226 of the Constitution. Learned advocate Mr. Najmul Hoda has appeared for the petitioner. He has submitted that the impugned judgment and order has been passed by the Family Court ex parte without Patna High Court CWJC No.22437 of 2011 (2) dt.22-12-2011 2 / 2 2 issuing notice to the respondent-the present petitioner. The Petition is contested by the learned advocate Ms. Priya Gupta appearing for the respondent no.1. She has submitted that the present petition against the order of maintenance made under Section 125 Cr.P.C. is not maintainable. The only remedy available is a criminal revision application under Section 397 Cr.P.C. In support of her submission she has relied upon the judgment of Division Bench of this Court in the matter of Raj Kumar Sah v. State of Bihar, {2008 (4) PLJR 817}. It is indisputable that against the impugned judgment a revision under Section 397 Cr.P.C. will lie. However, since the petitioner claims that the order has been made ex parte and that he was never given notice of the Maintenance Case No.134 of 2006 filed against him, the proper remedy available to the petitioner will be to approach the Court below for recall or setting aside of the ex parte judgment and order passed against the petitioner. For the aforesaid reason, the Petition is dismissed in limine. The petitioner will be at liberty to approach the Family Court, Vaishali at Hajipur for setting aside or recall of the impugned judgment and order dated 16th April 2010. In case such an application is made, the same will be decided by the Family Court in accordance with law. Pawan/- (R.M. Doshit, CJ)