Case Note & Summary
The case involves a criminal revision application filed by the husband, Vijay Bhairavnath Joshi, against the order of the Family Court dismissing his petition (M.A. No.3/2004) for condonation of delay and setting aside an ex parte maintenance order. The respondent-wife, Pournima Vijay Joshi, had filed P.E. No.160/2003 under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) seeking monthly maintenance for herself and her child, alleging that the husband had refused and neglected to maintain them. The Family Court sent notices to the husband by registered post, which were refused by him. Consequently, the court proceeded ex parte and on 17.6.2003 passed an order granting maintenance at Rs.1500 per month to the wife and Rs.500 per month to the child. When the wife sought to execute the order under Section 125(3) CrPC, the husband filed M.A. No.3/2004 seeking condonation of delay and setting aside the ex parte order, claiming that there was no proper service of summons. The Family Court dismissed that petition. The husband then filed the present criminal revision application before the Bombay High Court. The legal issue was whether the ex parte order should be set aside on the ground of improper service. The husband's counsel argued that the service was not proper and that the court should interfere. The High Court, however, was not impressed by this submission. The court noted that the notices were sent by registered post and were refused by the husband. Relying on Section 27 of the General Clauses Act, 1897, the court held that refusal of registered post constitutes sufficient service. The court found no merit in the revision and dismissed it, upholding the Family Court's order. The decision reinforces the principle that a party cannot avoid service by refusing registered post and then claim lack of proper service.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 CrPC - Ex Parte Order - Service of Summons - The husband refused registered post notice sent by the Family Court, leading to an ex parte maintenance order. The court held that refusal of registered post amounts to sufficient service under Section 27 of the General Clauses Act, 1897, and the husband cannot claim lack of proper service. The revision was dismissed. (Paras 2-5) B) Criminal Procedure Code - Maintenance - Section 125 CrPC - Condonation of Delay - Setting Aside Ex Parte Order - The husband filed a petition for condonation of delay and setting aside the ex parte order after execution proceedings began. The court found no sufficient cause for non-appearance and upheld the Family Court's order dismissing the petition. (Paras 3-5)
Issue of Consideration
Whether the ex parte maintenance order passed under Section 125 CrPC should be set aside on the ground of improper service when the notice sent by registered post was refused by the husband.
Final Decision
The High Court dismissed the criminal revision application, upholding the Family Court's order dismissing the petition for condonation of delay and setting aside the ex parte maintenance order.
Law Points
- Service by refusal of registered post is deemed sufficient service under Section 27 of General Clauses Act
- 1897
- Ex parte order can be set aside only if sufficient cause for non-appearance is shown
- Section 125 CrPC maintenance order can be challenged in revision only on limited grounds
