Case Note & Summary
The applicant, Umakant Bhaskarao Nawarkhele, filed a criminal revision application before the Bombay High Court, Aurangabad Bench, challenging an order dated 2 August 2013 passed by the Principal Judge, Family Court, Aurangabad. The Family Court had awarded maintenance of Rs.5,000/- per month each to respondent no.1 (his wife) and respondent no.2 (their minor child) under Section 125 of the Code of Criminal Procedure, 1973 (CrPC). The applicant, who is the husband and father, contended that the impugned order was passed without his participation in the inquiry proceedings. He had initially appeared before the Family Court but did not file a written statement. The matter was sent for conciliation, and after conciliation failed, the Family Court proceeded to hear the matter and passed the maintenance order without giving him an opportunity to present his case. The respondents argued that the applicant had every opportunity to participate but chose not to. The High Court examined the impugned order and noted that it was a fact that the applicant did not participate in the proceedings before the Family Court in any manner and the proceedings were held in his absence. The Court referred to Section 126 of the CrPC, which governs the procedure for inquiries under Section 125. The Court observed that the Family Court had not conducted a proper inquiry as required under Section 126 and had passed the order without affording the applicant a reasonable opportunity to be heard. The High Court held that the impugned order was unsustainable and set it aside. The matter was remanded back to the Family Court for a fresh inquiry, with a direction to give both parties an opportunity to be heard and to decide the application for maintenance afresh in accordance with law. The revision application was allowed.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 read with Section 126 CrPC - Ex Parte Order - The Family Court awarded maintenance of Rs.5,000/- per month each to the wife and minor child without the husband's participation in the inquiry. The husband had initially appeared but did not file a written statement and the matter proceeded ex parte after conciliation failed. The High Court held that the order was passed in violation of principles of natural justice as the husband was not given a proper opportunity to be heard. The impugned order was set aside and the matter remanded for fresh inquiry after giving both parties an opportunity to be heard. (Paras 4-9)
Issue of Consideration
Whether the Family Court could pass a maintenance order under Section 125 CrPC without the participation of the husband and without giving him an opportunity to be heard.
Final Decision
The revision application is allowed. The impugned order dated 2.8.2013 passed by the Principal Judge, Family Court, Aurangabad is set aside. The matter is remanded back to the Family Court for a fresh inquiry. The Family Court shall give an opportunity to both parties to be heard and decide the application for maintenance afresh in accordance with law.
Law Points
- Ex parte proceedings without affording opportunity to be heard are violative of principles of natural justice
- Section 126 CrPC requires proper inquiry before awarding maintenance
- Revision lies against order passed without participation of the opposite party.
