Ajay Dixit vs Smt. Rekha Devi on 18 January, 2018

THE HIGH COURT OF MADHYA PRADESH
MCRC-15189-2017
(AJAY DIXIT Vs SMT. REKHA DEVI)

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Jabalpur, Dated : 18-01-2018
Shri Quazi Fakhruddin, learned counsel for the petitioner.
Shri Arvind Kumar Pathak, learned counsel. for the
respondent.

Petitioner has filed this petition under Section 482 of Cr.P.C.

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to invoke the extra ordinary jurisdiction of this Court and to

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quash the recovery proceedings initiated against the

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petitioner, to set aside the ex-parte order dated 16.12.2016

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and maintenance order dated 17.01.2017 passed against the
petitioner.

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2. Bereft of the unnecessary details, the facts necessary for
disposal of this petition are that, the respondent/wife had
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filed an application alongwith her minor son under Section
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125 of the Cr.P.C. against the petitioner/husband claiming
maintenance. The said application was disposed on
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17.01.2017 ex-parte, awarding maintenance @ Rs. 3,000/-

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and Rs. 2,000/- per month.

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3. The petitioner preferred application under Section 126(2)
of the Cr.P.C., before the learned Principal Judge Family
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Court, Tikamgarh, which was dismissed on 09.08.2017. The
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petitioner, therefore, preferred this petition under Section
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482 of the Cr.P.C.

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4. The petitioner/non-applicant/husband did not mark
appearance before the learned Trial Court. Registered notice
sent to the petitioner/non-applicant for securing his presence
on 25.08.2016 but no information received. Letter was sent to
the post master, Tikamgarh about the delivery slip of the
registered notice on 25.08.2016. The Post Office submitted
the report that the intimation was given to the petitioner/non-
applicant about the registered letter but he did not collect
the same.

5. The trail Court pronounced order dated 17.01.2017 under
Section 125 of the Cr.P.C. after proceeding ex-parte and
allowed maintenance to the tune of Rs. 3,000/- (Three
Thousand Rs.) for the non-applicant’s wife and Rs. 2,000/-
(Two Thousand Rs.) for his minor son.

6. The petitioner preferred application under Section 126(2)
of the Cr.P.C. before the Principal Judge Family Court,
Tikamgarh. The same was decided on 09.08.2017 by a detail
order. The Court has clearly (at paragraph 4) given the
details of service of notice to the applicant/husband and held

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that the report given by the post office that the

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petitioner/non-applicant despite information did not receive

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the registered post. The postal employee, who was under

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duty to serve the registered post is a public servant and no
reason to presume without serving the notice, he has given
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the report.

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7. The learned Family Court, therefore, held service of notice
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to the petitioner/non-applicant was effected.

8. It would be appropriate to refer section 27 of the General
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Clauses Act, wherein presumption can be made if the
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registered letter sent to the addressee, in his correct address.
It is not case of the petitioner that the given addressee is not
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his correct address. Counsel for the petitioner placed reliance
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on Manvendra Yadav Vs. Sarvesh and others, 2015(3),
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Jabalpur law Journal 53 in which a Single Bench of this
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Court has held that presumption under Section 27 of the
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General Clause Act 1897, can be invoked of it is proved that
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notices were sent on the correct address of the respondent.
As has been already said the petitioner has not proved that
the given address in the registered post is not the correct
address. Therefore this citation is not applicable in the
present case.

9. In the case of Shamima Farooqui Vs. Shahid Khan
reported as (2015) 5 SCC 705, the Apex Court has called
upon all the Family Courts to be vigilant and not to succumb
to the design of the parties and not to show lethargy and
apathy. There need not be hurry, but procrastination should
not be manifest, reflecting the attitude of the Court. Family
Courts which have been established to deal with the
matrimonial disputes, which include application under
Section 125 of Cr.P.C. It is the duty of the Court to have the
complete control over the proceeding and not permit the lis
to swim in the unpredictable grand river of time, without
knowing when shall it land on the shores or take shelter in a
corner tree that stands “still” on some unknown bank of the
river. There has to be a proactive approach in this regard and

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the said approach should be instilled in the Family Court

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Judges.

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10. The obligation of the husband is on a higher pedestal

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when the question of maintenance arises. When the woman
leaves the matrimonial home, the situation is quite different.

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She is deprived of many a comfort. Sometimes, her faith in
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life reduces. Sometimes, she feels she has lost the tenderest
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friend. There may be a feeling that her fearless courage has
brought her the misfortune. At this stage, the only comfort
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that the law can impose is that, the husband is bound to give
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monetary comfort. That is the only soothing legal balm, for
she cannot be allowed to resign to destiny.

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11. It is not uncommon in the recent days that the non-

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applicant/husband willfully tried to avoid the summons by
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some means or other, and when the order is passed try to
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prolong the case by filing application for restoration. After
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exhausting all his remedy to bring the case to the initial
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stage, so that the wife is not allowed to seek the redress
properly. The learned trial Court repeatedly given time to the
petitioner/husband for adducing evidence and. The petitioner
failed to appear for his evidence before the trial Court in the
application under
Section 126(2) of Cr.P.C. The absence of
the petitioner/husband right from the very beginning and
absenting himself form the Court in the restoration case is
not pardonable. Even though, the proceeding is not a
criminal proceeding, in a strict sense of the term and yet
the
Code does not give the Court an indefinite or uncontrolled
power to restore the case. When the petitioner has to show
sufficient cause for his earlier absence, again he remained
absent which shows the conduct of the petitioner/husband.
The High Court cannot be oblivious of the fact that the
petitioner/husband has repeatedly remained absent despite
several opportunities.

12. On this back drop and the analysis of law it would be
appropriate that the petition has no merit, and therefore is
dismissed.

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(SUSHIL KUMAR PALO)
JUDGE

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Digitally signed by LALIT
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SINGH RANA
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Date: 2018.01.23 04:19:58

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