Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 33046 of 2024 Applicant :- Dushyant Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Nitin Raj Singh,Raj Singh Counsel for Opposite Party :- G.A.,Gagan Pratap Singh Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicant, learned counsel for the opposite party no.2 and learned A.G.A. for the State. 2. This application under Section 482 Cr.P.C. has been preferred against the order dated 29.08.2024, passed by learned Additional Principal Judge, Family Court No.2, Agra, in Criminal Misc. Case No.433 of 2023 (Dushyant Kumar Vs. Vandana,) under Section 125 Cr.P.C., Police Station- Shahganj, District- Agra, whereby the application filed by the applicant under Section 126(2) Cr.P.C. has been rejected. 3. Perusal of record shows that applicant is husband of opposite party no.2. The opposite party no.2 has filed a case under Section 125 Cr.P.C., which was decided by the Family Court vide ex-parte judgment dated 19.10.2022, granting maintenance to her. The applicant has filed an application under Section 126(2) Cr.P.C. for recalling of said ex-parte judgment and an application under Section 5 Limitation Act was also filed for condonation of delay. The application under Section 5 Limitation Act was allowed by the Family Court vide order dated 19.10.2023 subject to costs of Rs.1000/-. Later, the application under Section 126(2) Cr.P.C. has been rejected by the Additional Principal Judge, Family Court No.2, Agra, by impugned order dated 29.08.2024. 4. The main contention of learned counsel for the applicant is that the opposite party no.2 has mentioned two addresses of the applicant and the applicant was not residing at the address on which the alleged registered letter was sent by the Family Court and that there was no proper service on the applicant. It was submitted that once the Family Court has condoned the delay, which took place in filing of application under Section 126(2) Cr.P.C., in view of aforesaid facts, the application under Section 126(2) Cr.P.C. must have been allowed. The application under Section 126(2) Cr.P.C. has been rejected by applying a hyper technical approach. 5. On the other hand, the contention of learned counsel for the opposite party no.2 is that in proceedings of case under Section 125 Cr.P.C., the Family Court has held the service of notice sufficient on the basis of registered letter sent to the applicant. It was stated that there was valid service of notice upon the applicant and he deliberately did not appear in proceedings under Section 125 Cr.P.C. and thus there is no illegality or perversity in the impugned order dated 29.08.2024. 6. I have considered the rival submissions and perused the record. 7. It appears from record that when the applicant has filed application under Section 126(2) Cr.P.C. for recalling the aforesaid ex-parte judgment, there was delay of about 64 days in filing of said application and that delay was condoned by the Family Court. It was pointed out that before deciding application under Section 126(2) Cr.P.C., the Family Court has directed the applicant to pay Rs.18,000/- to the opposite party no.2, which was also paid by the applicant. In view of attending facts of the matter, it appears that the application of applicant under Section 126(2) Cr.P.C. has been rejected by the Family Court by adopting a technical approach. It is always the endeavour of the courts to decide such matters between the parties by affording opportunity of hearing to both the parties. In view of attending facts and circumstances, it would be just and proper that the application under Section 126(2) Cr.P.C, may have been allowed subject to some substantial costs, so that the opposite party no.2 may be compensated to the loss of arrears of maintenance, which accrued in pursuance to the ex-parte judgment. Considering all aspects of the matter, it appears that in the interest of justice, application under Section 126(2) Cr.P.C. be allowed subject to costs of Rs.50,000/-. 8. In view of aforesaid, the impugned order dated 29.08.2024 is set aside and the application of applicant under Section 126(2) Cr.P.C. stands allowed subject to costs of Rs.50,000/-. The costs shall be paid by the applicant to the opposite party no.2 before Family Court concerned within a period of four weeks from today. On payment of costs within aforesaid period, the ex-parte judgment dated 19.10.2022 would stand recalled and the case filed by opposite party no.2 under Section 125 Cr.P.C. shall be decided by the Family Court on merits in accordance with law. 9. The application u/s 482 Cr.P.C. is disposed of in above terms. Order Date :- 7.2.2025 'SP'/- Digitally signed by :- SANDEEP PAL High Court of Judicature at Allahabad