Case Note & Summary
The petitioner, Rameshwar Sandu Kachkure, filed a Criminal Writ Petition before the Bombay High Court, Aurangabad Bench, challenging an ex-parte order dated 13.03.2017 passed by the Judicial Magistrate, First Class, Badnapur, in Criminal Misc. Application No. 38/2015. The respondent No. 2, Yamuna, wife of the petitioner, had filed an application under Section 125 of the Code of Criminal Procedure, 1973, seeking maintenance. The Magistrate allowed the application ex-parte and directed the petitioner to pay maintenance of Rs. 1,500/- per month to the respondent No. 2. The petitioner contended that he was not served with any notice of the proceedings and was not given an opportunity of hearing. The respondent No. 2 argued that the petitioner was aware of the proceedings and had avoided appearance. The Court examined the record and found that the process was issued to the petitioner at his address in Sendra, Tq. & Dist. Aurangabad, but the petitioner had moved to a different address in CIDCO, Aurangabad. The Court noted that the Magistrate did not record any reasons for proceeding ex-parte and did not ensure proper service. The Court held that the order was passed in gross violation of principles of natural justice and set it aside, remanding the matter to the Magistrate for fresh decision after giving an opportunity of hearing to both parties. The Court directed the petitioner to pay costs of Rs. 5,000/- to the respondent No. 2.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 CrPC - Ex-parte Order - Natural Justice - The petitioner husband challenged an ex-parte order granting maintenance to his wife under Section 125 CrPC on the ground that he was not served with notice and was not given an opportunity of hearing. The Court held that the order was passed in violation of principles of natural justice and set it aside, remanding the matter for fresh hearing. (Paras 1-6)
Issue of Consideration
Whether the order passed by the Judicial Magistrate, First Class, granting maintenance to the wife ex-parte without giving an opportunity of hearing to the husband is sustainable in law.
Final Decision
The petition is allowed. The impugned order dated 13.03.2017 passed by the Judicial Magistrate, First Class, Badnapur, in Criminal Misc. Application No. 38/2015 is set aside. The matter is remanded to the Magistrate for fresh decision after giving an opportunity of hearing to both parties. The petitioner is directed to pay costs of Rs. 5,000/- to the respondent No. 2.
Law Points
- Principles of natural justice
- Ex-parte order
- Opportunity of hearing
- Section 125 CrPC
- Maintenance
