1 2025:CGHC:31322 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 349 of 2020 Sanju Nirmalkar S/o Mehatru Nirmalkar Aged About 40 Years R/o Bazar Chowk, Village Mandir Hassaud, Police Station Mandir Hassaud, District Raipur Chhattisgarh. ... Applicant versus 1. Smt. Jageshwari Nirmalkar W/o Sanju Nirmalkar Aged About 29 Years R/o Village And Post Sirri, Tahsil Gundersehi, Police Station Machandur, Police Station Utai, District Durg Chhattisgarh. 2. Ku. Prerna D/o Sanju Nirmalkar Aged About 1 Years Minor, Represented Through Mother Smt. Jageshwari Nirmalkar, R/o Village And Post Sirri, Tahsil Gunderdehi, Police Station Machandur, Police Station Utai, District Durg Chhattisgarh. ... Respondents For Applicant : Mr. Shikhar Bakhtiyar, Advocate. For Respondents : None. Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 08.07.2025 1. Heard Mr. Shikhar Bakhtiyar, learned counsel, appearing for the applicant. 2. None appeared on behalf of respondents to press this criminal revision ABHISHEK SHRIVAS Digitally signed by ABHISHEK SHRIVAS Date: 2025.07.09 10:34:58 +0530 2 when the matter is called for hearing today. 3. The present revision has been filed by the applicant with the following prayer: “It is therefore, most respectfully prayed that this Hon’ble Court may kindly be pleased to set-aside the impugned order dated 20.08.2019, in the interest of justice.” 4. Brief facts of the case are that the respondents filed an application under Section 125 of Cr.P.C. seeking grant of maintenance, stating that the marriage between the applicant and respondent No.1 was solemnized on 21.12.2016, and out of the said wedlock, respondent No.2 and one son, Khilendra, were born. Respondent No.2 is residing with respondent No. 1, while son Khilendra is residing with the applicant. It was alleged that after marriage, the applicant subjected respondent No.1 to cruelty on account of dowry demands and ultimately ousted her from the matrimonial home, due to which she is residing at her parental house. It was further contended by the respondents that although the applicant has a source of income, he is not paying any amount towards their maintenance, and therefore, they filed the application for grant of maintenance. 5. After service of notice, the applicant appeared before the learned Family Court but could not appoint an amicus curiae on his behalf, and due to lack of knowledge, he could not appear on each and every date of the proceedings. 6. On 21.10.2016, the applicant could not appear before the learned Family COurt, and on that date, the learned Family Court proceeded ex-parte against the applicant. After nine days, on 31.12.2016, the matter was 3 listed for the evidence of the respondents, and on that day, ex-parte evidence was recorded. After four days, i.e., on 04.01.2017, final arguments were heard, and the learned Family Court passed the ex- parte order. However, the said order was not within the knowledge of the applicant, and therefore, he could not contest the case on merits. An ex- parte order was passed on 04.01.2017, directing the applicant to pay Rs. 3,000/- per month to the respondents towards their maintenance. 7. After gaining knowledge of the ex-parte order, on 15.02.2017, the applicant filed an application under Section 126(3) of Cr.P.C. along with an affidavit for setting aside the ex-parte order dated 04.01.2017, mentioning reasonable grounds for his absence on the date of the ex- parte proceedings. The reply filed by the respondents on 30.11.2017 is filed herewith as ANNEXURE A/4. It is respectfully submitted that the reply filed by the respondents is not supported by any affidavit. 8. The medical prescription dated 21.12.2016 is filed herewith as ANNEXURE A/5 for kind perusal, which shows that the applicant was unwell on the said date, due to which he could not appear before the learned Family Court. The reason is genuine, but the same has not been considered by the learned Family Court. 9. In the original application filed by the respondents, it was averred that the applicant is the owner of a four-wheeler, while the fact that the said vehicle was sold by the applicant to someone else on 30.07.2015 has been suppressed. Thus, the ex-parte order passed by the learned Family Court is not according to law. During the conciliation proceedings before the Women Cell, Raipur, it was stated by the applicant that respondent No.1 does not want to live with him without any reason and that she has voluntarily left the applicant’s house, and therefore, she is not entitled to 4 receive any maintenance. The respondents have also filed a case under the Domestic Violence Act, in which the learned trial Court has ordered the applicant to pay around Rs. 8,000/- per month to the respondents. It is causing great hardship to a labourer like the applicant to pay Rs. 8,000/- under the Domestic Violence Act along with Rs. 3,000/- towards maintenance under Section 125 of Cr.P.C. Although there is no legal bar on awarding maintenance under the Domestic Violence Act, when the wife is already receiving maintenance under Section 125 of Cr.P.C., the learned Family Court ought to have considered the amount awarded under the Domestic Violence Act. Due to the dual maintenance orders, the applicant is facing irreparable loss and severe hardship, which as per law can be restrained. 10. Learned counsel for the applicant submits that the impugned order dated 20.08.2019 is bad in law, perverse, arbitrary, and erroneous, it is liable to be set aside. Learned Family Court has committed an error of law in passing the ex-parte order in favour of the respondents. He submits that learned Family Court ought to have allowed the application under Section 126(3) of Cr.P.C. for setting aside the ex-parte order. Learned Family Court has failed to appreciate that due to ill health, the applicant could not appear before the Family Court, which was bona fide and unintentional. Due to poverty and illiteracy, the applicant was not aware of the proceedings before the Family Court, and thus, he could not engage any amicus curiae to contest the case on his behalf. He also submits that in matters of family disputes, the Court should adopt a liberal view and, after hearing both parties, pass a final order. However, in the instant case, the learned Family Court proceeded ex-parte against the applicant in his absence after a single hearing, and within a short period of 15 days, the evidence of the respondents were recorded, and 5 the final order was passed. He further submits that learned Family Court has failed to appreciate that the non-appearance of the applicant was unintentional and bona fide, and therefore, the ex-parte order should be set aside/quashed. He also submits that the applicant has provided bona fide and actual reasons for setting aside the ex-parte order, but the same have not been considered or appreciated by the learned Family Court. The respondents are already receiving maintenance under the provisions of the Domestic Violence Act, no prejudice would be caused to them if the ex-parte order is set aside. 11. I have heard learned counsel for the applicant and perused the judgment of the learned Family Court. 12. Considering the submission advanced by the learned counsel for the applicant, materials available on record and also considering the price index and medical expenses, total amount awarded to the respondents cannot be said to be shockingly on higher side warranting interference by this Court in the present revision petition. 13. Accordingly, the criminal revision being devoid of merit is liable to be and is hereby dismissed. - Sd/- (Ramesh Sinha) Chief Justice Abhishek