Ravindra Singh - (1.) -This application is filed by applicant Ajai Kumar Day with a prayer that the order dated 30.6.2003, passed by learned Principal Judge, Family Court, Kanpur Nagar in Case No. 269 of 2001, whereby a maintenance allowance of Rs. 500 each per month has been awarded to the opposite parties No. 2 and 3 from the date of application dated 4.5.2001, may be quashed.
(2.) IT is contended by the learned counsel for the applicant that an application under Section 125, Cr. P.C. has been filed by the opposite parties Nos. 2 and 3. The notice was issued to the applicant. The applicant appeared before the Court concerned and filed a written statement denying the marriage, but due to non-appearance of the applicant on some dates, an ex parte order dated 30.6.2003 has been passed by the learned Principal Judge, Family Court, Kanpur Nagar. It is further contended that the opposite party No. 2 is not the wife and opposite party No. 3 is not the son of the applicant. As per application under Section 125, Cr. P.C. the marriage of the applicant was solemnized with the opposite party No. 2 on 13.5.2000, at the time of marriage the opposite party No. 2 was pregnant, from the wedlock of the applicant and the opposite party No. 2 a male child, opposite party No. 3 was born on 14.6.2000. The applicant has developed physical and sexual relations with the opposite party No. 2 prior to their marriage. It is alleged that the applicant has developed physical relations with the opposite party No. 2 forcefully when she was alone at her house, and a threat was also extended by the applicant after committing the sexual intercourse with the opposite party No. 2 for not disclosing this fact to any person. From the allegation made in the application under Section 125, Cr. P.C. it is not established that the applicant has performed the marriage with the opposite party No. 2 and it is an admitted case that at the time of the alleged marriage the opposite party No. 2 was pregnant, therefore, it cannot be said that the opposite party No. 3 was the son of the applicant. The applicant has taken a plea of denial of his marriage, but without affording the proper opportunity to the applicant the Family Court has passed the ex parte order dated 30.6.2003. It is further contended that the Family Court has not recorded any perfect finding regarding the income of the applicant. The issue of the income has been considered by the Family Court on the basis of the presumption whereas in application under Section 125, Cr. P.C. also no specific source of income has been shown by the opposite party No. 2. The applicant is regularly paying a sum of Rs. 500 p.m. to the opposite parties No. 2 and 3 in pursuance of the interim order dated 22.7.2004, passed by this Court. The learned court below passed the impugned order in hurry without affording any opportunity of being heard to the applicant and the impugned order dated 30.6.2003 is illegal on its merit also and therefore, the impugned order dated 30.6.2003 may be set aside.
(3.) IT is opposed by the learned A.G.A. and the learned counsel for opposite parties No. 2 and 3 by submitting that there is no illegality in the impugned order. The learned Principal Judge, Family Court has passed a perfect order because the applicant was avoiding his appearance in the Court concerned to linger on the proceedings. The impugned order has been passed ex parte, but the learned family court has considered the written statements filed by the applicant. The learned trial court has recorded finding in respect of the income on the basis of the material available on the record. There is no illegality in the impugned order dated 30.6.2003, therefore, the prayer for quashing the impugned order dated 30.6.2003 may be refused. After considering the submissions made by the learned counsel for the applicant, learned A.G.A. and learned counsel for the opposite parties No. 2 and 3 and from the perusal of the record and the impugned order dated 30.6.2003 it appears that the learned family court has passed the order without affording proper opportunity of being heard to the applicant whereas he has taken the plea of denial and as per the application under Section 125, Cr. P.C., it is admitted that the opposite party No. 2 was pregnant at the time of her marriage and she gave birth to a child on 14.6.2000, i.e., after one month of her marriage, in such circumstances where the marriage is not admitted, the ex parte order should not be passed without adopting the coercive step to ensure the appearance of the opposite party before the Court concerned, here in the present case no such process has been adopted by the family court. The finding recorded by the family court in respect of the income of the applicant is not based on the evidence. This finding has been recorded only on the basis of presumption for which there was no substance. Therefore, it is finding without fact. The applicant is regularly paying a sum of Rs. 500 p.m. as maintenance allowance to the opposite parties No. 2 and 3 in pursuance of the interim order dated 22.7.2004, passed by this Court in the present case. The impugned order dated 30.6.2003 is illegal. In such circumstances to meet the ends of justice it is essentially required that an opportunity of being heard be provided to the applicant before the family court and the interim maintenance allowance may also be awarded to the opposite parties No. 2 and 3 till the disposals of the case.;