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Setting exparte in intrime upkeep is Valid ?

ORISSA HIGH COURT

Crl. R. Nos. 256 and 257 of 1987

Bench: JUSTICE S.C. Mohapatra

JAYARAM THAKRA @ JHAGARA
Vs.
SABITRI THAKRA ORS. On 28 Mar 1991

 

JUDGEMENT

These dual revisions arise out of a move underneath Section 125, Cr.P.C.

2. Opposite celebration No. 1 is mother and opposite, celebration Nos. 2 and 3 are teenager daughters of petitioner. In a move for upkeep they filed an focus for halt maintenance. By sequence antiquated 1.10.1986, conference Court destined postulant to compensate halt upkeep during a rate of Rs. 150/- per month where it was destined that on disaster to approve with a order, postulant would not be authorised to competition a case. After one month when sequence was not complied with by petitioner, conflicting parties filed an focus to give instruction to postulant to compensate a same. Petitioner submitted that with intent of severe a sequence he has not complied with a same though in annoy of application, approved duplicate has not been postulated compartment then. Learned Magistrate reason that self-denial of halt upkeep that is postulated to equivocate itinerancy and distress would perplex a purpose and accordingly, rejecting acquiescence of petitioner, he systematic to set postulant ex-parte and move was posted for ex-parte hearing. Against a pronounced order, Criminal Revision No. 257 of 1987 has been filed.

3. After ex-parte hearing, sequence antiquated 4.2.1987 was upheld directing remuneration of upkeep during Rs. 400/- per month conflicting that Criminal Revision No. 256 of 1987 has been filed.

4. In annoy of deficiency of sustenance for extend of halt upkeep in a move underneath Section 125, Cr.P.C., Courts can extend a same in usually circumstances. See AIR 1986 SC 984, Smt. Savitri v. Govind Singh Rawat, (1989) 20 OCR 687, Yudhistir Nayak v. Smt. Rukmani Nayak, (1989) 2 OCR 84, Madhab v. Minamani Das and Another, 1986 (1) OLR 558. Smt. Sulochana Sahu v. Baman Ch. Sahu. Where a celebration feels aggrieved, he should be given a possibility to ensue aloft forums to absolve his grievance. Rigidity in insisting on correspondence of a sequence by formulating resources for that such celebration can't demonstrate his protest is not a satisfactory play. Trial Court ought to have examined if postulant was postulated with a approved duplicate on his complying with a formalities before implementing a formalities. To equivocate itinerancy and destitution, a process should not have been adopted that prevents a celebration from expressing his grievance.

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5. Direction environment postulant ex-parte is protest of postulant as schooled Magistrate has no energy to pass an ex-parte sequence solely a drift supposing for in Section 326(2) Proviso that reads as follows :

“126. Procedure :

(1) xxx xxx xxx

(2) All justification in such record shall be taken in a participation of a chairman conflicting whom an sequence for remuneration of upkeep is due to be done or, when his personal assemblage is dispensed with, in a participation of his pleader, and shall be available in a demeanour prescribed for summons cases.

Provided that if a Magistrate is confident that a chairman conflicting whom an sequence for remuneration of upkeep is due to be done is designedly avoiding service, or designedly neglecting to attend a Court, a Magistrate competence ensue to hear and establish a box ex-parte and any sequence so done competence be set aside for good box shown on an focus done within 3 months from a date thereof theme to such terms including terms as to remuneration of costs to a conflicting celebration as a Magistrate competence consider usually and proper.”

6. Non-compliance of sequence to compensate halt upkeep is not a conditions envisaged to pass ex-parte order. Specific sustenance for ex-parte sequence carrying been done by Parliament, there is no range for Courts to review into a sustenance something that is not unchanging with a denunciation of a pronounced provision. Power to set a celebration ex-parte is not subordinate to practice categorical power. Civil Courts competence have office in usually cases to levy limitation on delinquent father from contesting in practice of fundamental power. Such energy has not been vested in rapist Courts given fundamental energy is vested with High Courts usually underneath Section 482, Cr.P.C. Same element is not probable to be practical to record before Criminal Courts.

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7. Giving event of being listened in a element of healthy probity that is to be followed unless orthodox sustenance leads to a end otherwise. In this perspective of a matter, we am prone to reason that extreme energy to take divided a right to urge ought not to be invoked unless denunciation of a government does not visualize a same.

8. we competence have deliberate to consider differently if a persons who were given halt upkeep would not have any pill to realize a same. Such sequence for halt upkeep can be executed like a final sequence for maintenance. Courts can govern a sequence soon to give service to exterminate itinerancy or destitution.

9. So distant as wives to whom upkeep is systematic to be paid, problems have been private by a Committee for implementing Legal assist schemes constituted by Central Government headed by a Sitting Judge of Supreme Court that is famous as CILAS. It has intimated a Orissa State Legal Aid and Advice Board in minute antiquated 29.9.1989 that to cover a formidable duration from a establishment of record for matrimonial upkeep from a husband, mother can be paid financial assistance in honourable cases by a State Board upto a roof of Rs. 300/- per month for a limit duration of 6 months with sequence of Court. Implementation of a intrigue is simple. Wife who has an sequence for removing upkeep in her foster is to make an focus to a Court for removing a financial assistance from a State Legal Aid Board. Court is to inspect a justification of a request and pass an sequence to that outcome in his foster in a honourable case. Since a volume of authorised assistance to be perceived is to be paid behind to a Board for being utilized in other honourable cases for creation it a permanent intrigue for proxy assistance, mother is to govern an endeavour for composition of a volume recovered from a father as per sequence of a Court. Time for 6 months is adequate adequate to redeem a upkeep volume from a husband. Courts should be some-more observant in such cases. Introduction of this intrigue is not nonetheless done famous to Courts. It is advisable that a intrigue is prepared by Member-Secretary of State Legal Aid and Advice Board and circulated to all Courts traffic with upkeep of wives from husbands in this State so that it can be implemented to a advantage of vacant by a Courts in honourable cases but watchful for any executive instruction from a High Court given a intrigue is not in any demeanour unsuitable with administration of justice. Rather it is in avail of a same.

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10. In this case, adopting a intrigue of CILAS, we approach a State Legal Aid and Advice Board in practice of energy underneath Section 482, Cr.P.C. to exercise a intrigue on receipt of sequence of a Court and offer for such financial assistance to a border of Rs. 150/- usually that has been awarded as halt upkeep treating it to be an sequence in foster of a mother that would be utilized for advantage of children also.

11. Coming behind to a sequence environment postulant ex-parte, we am confident that schooled Magistrate had no such energy and this is also not a honourable box where such extreme movement was called for. Accordingly, sequence antiquated 11.11.1986 is set aside and accompanying final sequence is also vacated. Learned Magistrate shall continue a move from a theatre where it was on 11.11.1986. Proceeding underneath Section 125, Criminal Procedure Code competence be finalised within 3 months of receipt of record of this Court. Both parties are destined to seem before a schooled Magistrate on 6th May, 1991, for regulating a date of hearing.

12. In a result, both a rider are authorised to a border indicated above. There shall be no sequence as to costs.

13. Send a duplicate of this sequence to Member-Secretary, State Legal Aid and Advice Board for compliance.

Revisions allowed.

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