Neutral Citation No. - 2025:AHC:59487 Court No. - 79 Case :- CRIMINAL REVISION No. - 461 of 2025 Revisionist :- Alok Sharma Opposite Party :- Smt. Sonia Sharma And Another Counsel for Revisionist :- P.H. Vashishtha Hon'ble Subhash Chandra Sharma,J. Learned A.G.A. is directed to implead the State as opposite party no. 3 during the course of the day. Heard learned counsel for the revisionist as well as learned A.G.A. and perusal the material on record. This criminal revision has been filed by the revisionist with prayer to allow this revision and set aside the impugned judgment and order dated 23.10.2024 passed by the learned Principal Judge, Family Court, Budaun in Case No. 560 of 2015, under Section 125 Cr.P.C., Police Station Civil Lines, District Budaun. It is submitted by learned counsel for the revisionist that in this case, opposite party nos. 1 and 2 are wife and minor child of the revisionist. The marriage was solemnized in the year 2018, thereafter opposite party no. 2 was born and wife started living with her father without any reasonable excuse. An application u/s 125 Cr.P.C. was filed by her before the learned trial court but it was dismissed in default. Later on, at the instance of opposite party no. 1 that was restored and after hearing, present order was passed on 23.10.2024 by which Rs. 3000/- in favour of wife/opposite party no. 1 and Rs. 1500/- in favour of minor son/opposite party no. 2 has been fixed by the learned trial court. Further submitted that the opposite party no. 1/wife is highly educated lady and is able to maintain herself. On the other hand, the revisionist is an unemployed person and having no any income, therefore, he is not in capacity to make payment of the amount of maintenance in favour of wife and minor child. It is also submitted that a petition for divorce under section 13 Hindu Marriage Act was filed by the revisionist against opposite party no. 1 on the ground of cruelty which was decreed ex-parte in favour of revisionist and he made deposit Rs. 1,00,000/- (one lakh) in the court and said decree has not been appealed against. The wife is teaching in convent school from the year 2022 and therefore she cannot be said to be entitled for maintenance from the husband. Learned trial court did not consider all these facts while allowing the application, therefore, order passed by learned court being illegal is liable to be set aside. He also submits that the order for payment of maintenance has been passed from the date of application which must have been from the date of order. The amount of arrears is beyond the paying capacity of the revisionist, therefore, also request to divide the arrears of maintenance in easy installments. learned A.G.A. opposed the prayer as aforesaid. On considering the facts and circumstances of the case, submissions made by learned counsel for the revisionist as well as learned A.G.A. perusal of record and order passed by learned trial court, it appears that opposite party nos. 1 and 2 are married wife and minor child of the revisionist who were living with her father as a result of neglect on the part of the revisionist. Though an ex- parte decree has been passed in favour of revisionist the opposite party no. 1 has filed an application under order 9 rule 13 and Section 151 C.P.C. for setting aside ex-parte decree dated 25.08.2020 with an application under Section 5 Limitation Act that is still pending before the learned family court. The ex-parte decree was passed without giving opportunity of hearing to the opposite party, therefore, it cannot be concluded that the wife was behaviouring with cruelty with the revisionist. There is nothing on record to show that the opposite party no. 1 has income by teaching in convent school. On the other hand the revisionist is an able bodied person and is under legal and moral obligation to maintain his wife and minor son. The amount of maintenance Rs. 3000/- in favour of wife and Rs. 1500/- in favour of minor son cannot be said to be excessive and beyond the paying capacity of the husband. In this way, there appears no any ground to make interference in the order passed by learned trial court dated 23.10.2024. So far as the recovery of arrears of maintenance is concerned, the amount of arrears of maintenance from the date application to the date of order is concerned it may be divided into equal 18 monthly installments, those will be paid with current amount of maintenance month to month. Accordingly, the present revision is disposed of at the admission stage. Order Date :- 22.4.2025 Anurag Singh Digitally signed by :- ANURAG SINGH High Court of Judicature at Allahabad