Hari Shankar Prasad, J. - (1.) This is an application under Section 19(4) of the Family CourtTs Act, 1984, for setting aside the order dated 19/7/2001 passed in Misc., Case No. 100/95.
(2.) The facts giving rise to the application are that O.P. No. 2 Meera Devi who is the wife of the petitioner filed a petition under Section 125, Cr. P.C., for payment of Rs. 1,000.00 p.m. towards maintenance allowance for herself and her child and the case was registered as Misc. Case No. 100/95. O.P. No. 2 stated in her petition under Section 125, Cr. P.C., that marriage was solemnized between the petitioner and herself on 19/2/1982 at Hazaribagh according to Hindu rites and customs and out of said wedlock, a son was born to them in February, 1989. After sometime petitioner started torturing O.P. No. 2 physically and mentally and ultimately she was turned, out from her matrimonial house with her child and since then, she is living with her mother and brother. It is also alleged in the petition that her husband is keeping a mistress with him at the place of his posting. Respectable persons of the society made an attempt for settlement between them but that too failed. She claims that she is a housewife and she has no source of income and she prays for Rs. 1,000.00 p.m. for maintenance of herself and her child. Petitioner did not receive any notice in the aforesaid case but he was served with one Letter No. 489, dated 12/8/1987 at Kharkawan Canal Division. Rajnagar and from that letter, he came to know that in Misc. Case No. 100/95. Trial No. 373/97 filed by Mrs. Meera Devi, his wife - O.P. No. 2 has been allowed maintenance Rs. 1,000.00 p.m. against the petitioner by the Court of Judicial Magistrate, 1st Class, Hazaribagh by order dated 18/11/1997. The petitioner came to Hazaribagh and after obtaining certified copy of the aforesaid ex-parte order dated 18/11/1997 filed an application on 14-8-1997 before the Court of Judicial Magistrate 1st Class. Hazaribagh under Section 125(4), (5) of the Code of Criminal Procedure and prayed for allowing him to adduce evidence in support of his contention and further prayed for staying the operation of the ex-parte order dated 18/1/997 till final disposal of this application, the prayer was allowed and by order dated 14/8/1997 stayed distress warrant. The petitioner was directed to produce witness and on 28/11/1997, there was strike in the Court and the case was fixed for 6/1/1998, on that date of the petitioner produced one witness, on that date he was examined and cross-examined and discharged and on 10/2/1998 the next date he was to appear for examination of other witnesses but due to election he could not appear on that date and petition to that effect was filed that petitioner is engaged on election duty and filed an application for time and on his application, time to, the petitioner was granted but on condition that he has to deposit one third of the entire maintenance amount and fixed the case on 11-3-1998. The petitioner appeared on 11-3-1998 and both the sides were heard and 17-3-1998 was fixed for order. On 17-3-1998 a detailed order was passed directing the petitioner to deposit Rs. 15,875/- for maintenance of the child but no order for allowing maintenance in favour of the Opposite Party No. 2 was passed. The petitioner filed a criminal revision against the order dated 17-3-1998 which was dismissed by order dated 25-7-2000 by the 2nd Additional Sessions Judge in Criminal Revision No. 64/98. Against the aforesaid order the petitioner preferred a Criminal Misc. 7096/2000 (R) before the Honble High Court, Ranchi but the petitioner had to withdraw that petition and the petition was dismissed as withdrawn vide order dated 14-3-2001 passed in Cr. Misc. No. 7096/2000 (R). On 10-5-2001 the petitioner received a distress warrant dated 24-4-2001, whereby he was directed to deposit Rs. 68,000/- and he filed a petition on 18-5-2001, for recalling the petition but thereafter he did not receive any notice. Sometime after final order was passed from the Court of Principal Judge, Family Court at Hazaribagh, he prayed for certified copy and received the same.
(3.) Learned counsel for the petitioner submits that stay was granted by learned Court of Judicial Magistrate vide order dated 17-2-1998, which was confirmed by the HonTble High Court also and the learned Family Court without hearing the matter of payment of maintenance on the application of O.P. No. 2 passed final order on 19-7-2000. Though the case was transferred to the Family Court but neither any information nor any notice even was sent to the petitioner, which is wholly arbitrary and against the principle of natural justice. Learned counsel further submitted that O.P. No. 2 is living in adultery and does not want to live with the petitioner, therefore, she is not entitled to any amount of maintenance under Section 125, Cr. P.C., and the learned Court below has failed to appreciate that the criminal revision 64/98 was against the order dated 17-3-1997 passed in Criminal Misc. No. 100/95. It is stated that the petitioner has not been given any notice to adduce evidence and for that revision petition should be allowed.;