Bombay HC:- Service of Notice of Maintenance Case should be served to the Respondent (Husband) personally or to the Family of the Respondent and not to the advocate appearing on behalf of Respondent in other matters.
Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO.74 OF 2012.
Atul S/o. Bhaskarrao Thakre (Deshmukh),
aged about 34 years, R/o. C/o.
Bhaskarrao Sheshrao Thakre, Near Samaj
Mandir Khedkar Nagar, Akola, Dist. Akola. …. APPLICANT.
1. Sau. Anuja W/o. Atul Thakre,
(Deshmukh), Aged 31 years,
Occu. Housewife, R/o. S.B.I. Colony,
No.4, Gajanan Peth, Akola, Tq. and
2. The State of Maharashtra, through
P.S.O. Akola. …. RESPONDENTS.
Mr. A.V.Bhide, Advocate for Applicant.
Mr. U.J.Deshpande, Advocate for Respondent No.1.
Mr. V.A.Thakre, Additional Public Prosecutor for Respondent No.2.
CORAM : M.L. TAHALIYANI, J.
DATED : MARCH 01, 2013.
ORAL JUDGMENT :
3. Heard finally by consent.
4. The applicant is aggrieved by the order passed by learned Family Court in Petition No.E11/2011 directing the applicant to pay a sum of Rs.8,300/ per month to respondent No.1 by way of maintenance. Respondent No.1 is wife of the applicant. Respondent No.1 has filed an application for grant of maintenance under Section 125 of the Code of Criminal Procedure before the Family Court. The said application was finally decided by the impugned order.
5. During the course of hearing it was pointed out by learned counsel Mr. Bhide that the application filed by nonapplicant under Section 125 of the Code of Criminal Procedure was not served upon the applicant in
accordance with law. He has brought to my notice contents of the impugned judgment at paragraph No.10 which can be reproduced as under :
“10. The non applicant had filed the petition for divorce which was pending in this Court. His advocate received the service of the notice of the present proceeding. The non applicant did not remain present nor filed his say inspite of various opportunities given to him hence by an order dtd 16.6.2011 the applicant was directed to proceed without say.”
6. It is, thus, clear that there was no service of maintenance application on the applicant personally or on any of his family members. The application was served through the Advocate who was appearing on behalf of the applicant in separate proceedings under the Hindu Marriage Act, 1955.
7. In my considered view, the service effected by the Family Court was not ‘good service’ in law. For this reason the order passed by the Family Court cannot be sustained. The applicant will have to be given opportunity of being heard and the application will have to be decided afresh.
i. The application is allowed.
ii. The order passed by Family Court in Petition No.E11/2011 directing the applicant to pay a sum of Rs.8,300/ by way of maintenance to respondent No.1 and all other consequential orders are set aside.
iii. The application filed by respondent No.1 shall be heard afresh.
iv. The applicant and respondent No.1 both shall appear before the Family Court on 18th March, 2013 at 11.00 a.m.
v. It is made clear that now Family Court is not under obligation to effect fresh service on the applicant.
The application stands disposed of accordingly.