- (1.) SHIV Charan, J. Heard learned Counsel for the revisionist and perused the impugned judgment and order dated 21. 2. 2008 passed by Principal Judge Family Court, Meerut in Misc. Case No. 216 o-2007 (Kalbe Mehndi v. Tasneem Zehra ). By this order the learned Judge dismissed the application of the revisionist for restoration of the Case No. 150 of 2004, under section 125. Cr. P. C.
(2.) THE learned Counsel for the revi sionist argued that a petition under section 125 Cr. P. C. was instituted by the opposite party for maintenance and it was num bered as 150 of 2004 (Tasneem Zehra v. Kalbe Mehndi ). That no notice was served on the revisionist of this petition under section 125, Cr. P. C. He also argued that he has filed prior to copy of the order sheet of Case No. 150 of 2004 and by the order dated 1. 4. 2006, the Family Judge presumed sufficient service on the revisionist by a fixation of the notice, as the revisionist re fused to receive the notice. He argued that the fact is that he received no notice. He never refused to process server to receive the notice. And ultimately ex-parte order of maintenance was passed or, 25. 5. 2007. That after knowing this fact without wasting any time he moved the application for setting aside the ex-parte order and the restoration of the case. He also argued that the oppo site party concealing the material fact from the Court in view of the Annexure-1 the revisionist divorced the opposite party on 1. 5. 2006. THE certificate was issued to this effect by Moulana Ali Ibnul Hasan Banqri and that he is competent to issue the certificate of divorce. That after divorce the revi sionist is not bound and liable to pay the maintenance. Rather the case must be cov ered under the provision of Muslim Women (Protection of Rights on Divorce) Act, 1986. And he cited the judgment of Hon'ble Apex Court in Iqbal Bano v. State of U. P. and others. 2007 (58) ACC 824 (SC) = 2007 (55) AIC 4 (SC ). He also argued that in view of the judgment of this Court also the petition under section 125 Cr. P. C. must be decided on merits. A. G. A. opposed the argument of learned Counsel for the revisionist. At this stage it will not be justified to make any comments on the merit of the case. It is for the Trial Court to decide whether the revisionist divorced the op posite party as alleged. But it is a fact that the application under section 125 Cr. P. C. was decided ex-parte and the service was presumed sufficient by fixation of notice as the revisionist refused. It is not a case in which revisionist was served personally and thereafter he remained absent to con test the case. And the application of resto ration was moved. But the learned Judge Family Court arrived at the conclusion that the ground for restoration is not sufficient. I have also perused the judgment of this Court in Sri Kant v. Judicial Magistrate III Saharanpur and others 1999 (38) ACC 306 (Alld.)And in view of this judgment also application under section 125 Cr. P. C. must be decided on merits. But it is also a fact that petition was instituted in the year 2004. Where as she was divorced according to the revisionist himself in the year 2006. And according to contention of the revisionist himself the opposite party is entitled for maintenance for this period prior to the divorce. Although it is a fact to be decided by the Trial Court but reference has been made to this fact only due to rea son that according to contention of the re visionist himself opposite parity was di vorced in the year 2006 on 1. 5. 2006. It has also been averred by the learned Counsel for the revisionist that the revisionist belong to a labour class and the Trial Court presumed the income of the revisionist on the basis of conjecture. That the income of the revisionist is too meagre and he is not in a position to pay the maintenance of Rs. 2000/- per month. Al though this fact is to be decided by the Trial Court. However till the matter is de cided by the Family Court I think it proper that the amount be reduced to Rs. 1000/-till the application is disposed of finally within stipulated period.
(3.) CONSIDERING all the facts and cir cumstances, of the case I am of the opinion that the petition under section 125 Cr. P. C. was decided ex parte and the service to the revisionist was not personal. Rather service was presumed on the basis of fixation of notice on refusal. It appears that the learned Judge has not considered all the facts and circumstances of the case prop erly while deciding the application for restoration. There was sufficient reason. Such circumstance to set aside the ex-parte judgment. However in the interest of justice and to safeguard the interest of the parties it is proper that the case must be decided on merits. Under these circumstances, the re vision deserves to be allowed and the ex- parte order dated 25. 5. 2007 deserves to be set aside. And the matter is to be remanded to the Judge Family Court for deciding afresh on merit after affording an oppor tunity to both the parties to produce evi dence and W. S. also. The revision is allowed. The order dated 25. 5. 2007 is set aside and the Trial Court is directed to decide the application under section 125 Cr. P. C. Case No. 150 of 2004 (Tasneem Zehra v. Kalbe Mehndi) within a period of six months from the date on which the copy of this order is produced in the Court and both the parties shall co operate in quick disposal of the case. It is also provided that the revisionist shall pay the maintenance at the rate of Rs. 1000/-per month or he may deposit in the Court from the date of application. This mainte nance is on interim maintenance. Revision Allowed. .;