1 appln 117-10.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Application No. 117 of 2010 in Criminal Revision (Stamp) No. 228 of 2010 Kumar Ram Kamat .. Applicant v/s. Harshkumar Kamat and another ..Defendants Mr.Harshad Bhadbhade for the applicant . Mrs. B.P.Jakhade for the respondent no.1. CORAM : R.Y.GANOO, J. DATED : 28th March, 2011 P.C. : 1. The respondent had filed application for maintenance on behalf of the son born out of the wedlock between the petitioner and the respondent by filing an application under Section 125 of Cr.P.C. in the Family Court at Bandra, Bombay being Application No.E-545 of 2007. The petitioner remained present before the learned Judge on 9.5.2008 and thereafter did not remain present before the learned 2 appln 117-10.sxw Judge till the disposal of the said application by order dated 24.10.2008. The learned Judge of the Family Court has by order dated 24.10.2008 decided the application for maintenance and granted sum of Rs.3000/- to the minor son Harsh w.e.f. 12.12.2007. This order has been challenged by the petitioner by filing Criminal Revision Application (Stamp) No.228 of 2010. As the filing of the said application was beyond the period of limitation, the petitioner has filed this application for condonation of delay of 522 days in filing the revision application. 2. I have heard learned Counsels on both sides on the question of condonation of delay. It is to be noted that the petitioner remained present before the learned Judge on 9.5.2008. Thereafter the learned Judge adjourned the matter from time to time and ultimately while passing order on 12.9.2008, came to the conclusion that the petitioner has remained absent on last four dates and that he directed to proceed with the matter without written statement. Thereafter the evidence was recorded and after a gap of 15 days the judgment was delivered. 3. It is noted that the respondent took out Execution Proceedings for 3 appln 117-10.sxw recovery of the maintenance granted to the son. Arrest warrant was issued and when the steps to recover maintenance was taken by the respondent, the petitioner came to know about the order passed against him and that is how he has challenged the order of maintenance and because there was delay he has filed this application for condonation of delay. 4. I have heard learned Counsel appearing for the petitioner as well as the respondent. Learned Counsel appearing on behalf of the petitioner contended that the respondent had in the Divorce Proceeding namely Petition No.A-1731 of 2006 in the Family Court had entered into consent terms and had opted to have custody of the son Harsh and had undertaken to maintain the son solely and the respondent had waived right of maintenance for herself and she was not willing to make any claim for maintenance of the son. 5. Learned Counsel appearing on behalf of the petitioner submitted that this was one of the ground on which he was under the impression that no order would be passed. He also submitted that the petitioner works as driver at Hyderabad and that is why he lost track of the 4 appln 117-10.sxw matter. I have considered the two points raised by the learned Counsel for the petitioner and I am not inclined to accept them for the purpose of condonation of delay. It may be that the respondent had indicated that she would not apply for maintenance for the child. However, that by itself cannot be considered as a bar on permanent basis to apply for maintenance. That apart, the respondent filed an application for maintenance. It was served upon the petitioner and the petitioner appeared before the Court on 9.5.2008. The relevant dates are being quoted as xerox copy of the roznama is annexed to this proceeding. After the petitioner remained present before the court on 7.5.2008, no steps were taken by the petitioner for the purpose of filing his defence as he allowed the matter to go ex-parte and it is in these circumstances the petitioner neglected to appear before the learned trial Judge of the family court. The arguments advanced by learned Counsel for the petitioner that he was under the impression that on account of the text of the consent terms, his son would not be entitled for maintenance cannot be accepted because the regular application was filed and it was prosecuted by the respondent and it was for the petitioner to remain present, contest the matter and do the needfull. The petitioner did not do so and it is only when the 5 appln 117-10.sxw execution application was made and only when arrest warrant was issued, the petitioner, thought of looking into the matter. The conduct on the part of the petitioner is negligent. He had no desire to make enquiry into the matter after 9.5.2008 as to what has happened in the matter. In my view, the grounds set out in the application for condonation of delay is required to be rejected. 6. I am told across the bar by the learned counsel by the petitioner that certain amount has been deposited by the petitioner towards fulfillment of the order dated 24.10.2008 and the said amount has been deposited in the High Court. I am also told that the said amount has been withdrawn by the respondent for the benefit of the minor child. 7. In view of the above, following order is passed. ORDER i) Application for condonation of delay is rejected. ii) Applicant to pay costs of Rs.3000/- to the High Court Legal 6 appln 117-10.sxw Aid Committee. [R.Y.GANOO, J.]