- (1.) Rejoinder affidavit filed by learned counsel for the revisionist today in the Court is taken on record. Heard learned counsel for revisionist, learned counsel for opposite party no.2 as well as learned AGA and perused the record.
(2.) The revision has been filed against the order dated 18.12.2014 passed by Principle Judge, Family Court, Saharanpur in Misc. Case No.547 of 2013, Mohd. Tariq Vs. Km. Farheen @ Areeba by which the application of revisionist under section 126 (2) Cr.P.C. for setting aside the ex parte order of maintenance dated 13.5.2008 was rejected. The brief facts which are not disputed between the parties relating to the case are that Smt. Alia was married to the revisionist Mohd. Tariq on 25.12.2002 and out of wedlock a daughter Km. Farheen, the opposite party no.2 born on 6.12.2003. On 1.4.2006, Smt. Alia along with her minor daughter Km. Farheen moved an application under section 125 Cr.P.C., Criminal Case No.251 of 2006 seeking maintenance at the rate of Rs.5000/- per month for herself and Rs.6000/- per month for her minor daughter total Rs.11,000/- per month. Undisputedly after service of notice on the revisionist, opposite party in above maintenance case, did not appear and case was ordered to proceed ex parte against him. Thereafter, the revisionist put in appearance and moved application for recall of ex parte order, which was allowed subject to payment of costs, but neither the cost was paid nor the revisionist appeared before the Court and the case was again ordered to proceed ex parte against him vide order dated 15.11.2007. It is also not disputed that in the meantime on 24.5.2007, the revisionist entered into compromise with Smt. Alia and by mutual consent both of them dissolved the marriage between them, by way of Talaq and a sum of Rs.1,00,000/- was paid by the revisionist to Smt. Alia towards mehar and maintenance. In furtherance of ex parte order dated 15.11.2007, the maintenance petition was proceeded ex parte in absence of the revisionist and considering the arguments advanced on behalf of petitioner of maintenance case that marriage has been dissolved by way of Talaq on 24.5.2007 and Smt. Alia has received a sum of Rs.1,00,000/- towards the mehar and her maintenance for iddat period, and she is not claiming maintenance for herself as well as considering the allegations about the two houses owned by revisionist fetching a monthly rental of Rs.2000/- apart from a newspaper agency and work of property dealer and service of revisionist at Agency at salary of Rs.5000/- per month, the maintenance of Rs.1500/- per month was awarded to Km. Farheen, opposite party no.2 from the date of order i.e w.e.f. 13.5.2008. Thereafter vide order dated 10.6.2008, the revisionist moved an application under section 126 (2) Cr.P.C. for recall of ex parte order of maintenance dated 13.5.2008 which was dismissed by impugned order giving rise to this revision.
(3.) Learned counsel for the revisionist contended that the impugned order is wrong on facts and law; that the Principle Judge, Family Court has acted wrongly and incorrectly in rejecting the recall application on the ground that the allegations of compromise between the parties and payment of Rs. 1,00,000/- towards maintenance amount of wife as well as minor daughter are not supported by any documentary evidence and oral allegations may not be accepted; that the learned Principle Judge, Family Court has acted wrongly in holding that in case the amount of Rs.1,00,000/- was paid towards lump sum payment of maintenance amount for wife as well as minor daughter both then the same ought to have been reduced into writing and revisionist would have got the case decided on such ground and would not have absconded from trial. Learned counsel for revisionist also contended that Smt. Alia, the mother as well as guardian of opposite party no.2 has made re-marriage and the revisionist has also moved an application seeking custody of opposite party no.2. Per contra, learned counsel for opposite party no.2 contended that the revisionist has undisputedly divorced Smt. Alia, the mother of opposite party no.2 and made payment of Rs.1,00,000/- towards payment of mehar as well as lump sum payment of maintenance allowance of Smt. Alia; that it is wrong to say that payment of Rs.1,00,000/- was made towards the full and final payment of mehar as well as lump sum payment of maintenance allowance of Smt. Alia as well as her minor daughter opposite party no.2; that the revisionist has always avoided and delayed the hearing in the case and has not come to Court with clean hands; that the opposite party no.2 is growing child aged about 11-12 years and heavy amount is required for meeting the expenses for her livelihood as well as her education; that there is no illegality, irregularity or incorrectness in the impugned order rejecting application under section 126 (2) Cr.P.C.; that the Principle Judge, Family Court has very correctly held that even in case of compromise between the husband and wife, the parties may not be permitted to ascertain the amount of maintenance of the minor child as well as its payment without permission of court.;