Neutral Citation No. - 2025:AHC:123999 Court No. - 78 Case :- APPLICATION U/S 528 BNSS No. - 11627 of 2025 Applicant :- Himanshu Sharma Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Ashutosh Upadhyay Counsel for Opposite Party :- G.A.,Santosh Kumar Gupta Hon'ble Anish Kumar Gupta,J. 1. Heard Sri Ashutosh Upadhyay, learned counsel for the applicant, Sri Santosh Kumar Gupta, learned counsel for opposite party nos.2 and 3 and Sri S. K. Ojha, learned AGA for the State. 2. The instant application under Section 482 Cr.P.C. has been filed by the applicant seeking quashing of the order dated 30.01.2025, passed by the learned Principal Judge, Family Court, Sambhal at Chandausi, in Misc. Case No.1185 of 2024(Himanshu Sharma Vs. Smt. Shimpli Sharma & another), under sections 145(2) B.N.S.S., arising out of ex-parte order dated 22.05.2023 passed by learned Principal Judge, Family Court, Sambhal at Chandausi, in Case No.149 of 2022(Smt. Shimpli Sharma & another Vs. Himanshu Sharma), under section 125 Cr.P.C., Police Station Chandausi, District Sambhal, as the same has been rejected on the ground of limitation and may be pleased to direct to the court below to decide the application under section 145(2) B.N.S.S. on merit after providing opportunity of hearing to the applicant. It is further prayed to release the applicant on bail in connection of Misc. Case No.658 of 2024(Original Case No.149 of 2022, under sections 144(3) B.N.S.S. It is also prayed to stay the proceeding against the applicant in Case No.658 of 2024, under section 144(3) B.N.S.S. as well as effect and operation of the ex-parte order dated 22.05.2023, passed by the learned Principal Judge, Family Court, Sambhal at Chandausi, in Case No.149 of 2022(Smt. Shimpli Sharma & another Vs. Himanshu Sharma), under section 125 Cr.P.C., Police Station Chandausi, District Sambhal, during the pendency of this application before this Hon'ble Court. 3. Learned counsel for the applicant submits that opposite party no.2 is the wife and opposite party no.3 is the son of applicant herein. There is a matrimonial dispute between the applicant and opposite party no.2, due to which various cases have been filed by the opposite party no.2 against the applicant and other family members. The case of the opposite party no.2 is that in the month of January-2022, the opposite party no.2 and her family members had taken the applicant towards Haridwar and on the way they have badly beating him up and left him near Purkaji Town, on the side of the road, as he became unconscious. When he begin consciousness some people brought him to the temple and he stayed in the village Purkaji in the temple for few months. Thereafter, he came to Haridwar and stayed there at Vishnu Ghat and was dependent upon the foods provided by the people visiting there. On 04.10.2023 some people from Bareilly came to Haridwar who identified the applicant and then they informed regarding the death of his mother, whereupon he came back on 08.10.2023 to his in-laws place and thereupon the father-in-law of the applicant got him arrested by calling the police, in the case under sections 498-A, 323, 504, 506, 354, IPC and section 3/4 D.P. Act. In the said case the applicant herein was granted bail on 20.01.2024. In the meantime, an application under section 125 Cr.P.C. was also filed by the opposite party nos.2 and 3 against the applicant herein, which was decreed ex-parte on 22.05.2023 against the applicant herein. In the said judgment and order it is observed by the court that on 25.01.2023 an status report was received that the summons have been duly served on the applicant. On the basis of which the service was presumed against the applicant and on 28.03.2023 said proceedings under section 125 Cr.P.C. was proceeded ex-parte against the applicant herein and vide final order dated 22.05.2023 the Family Court has awarded a sum of Rs.10,000/- per month to the opposite party no.2 and Rs.5,000/- per month to the opposite party no.3, as maintenance, from the date of application i.e. 21.04.2022. After the final order was passed, the opposite party nos.2 and 3 have also filed an application under section 125(3) Cr.P.C. dated 03.07.2023, for recovery of the maintenance amount for a period of 14 months from 21.04.2022 to 10.06.2023. In the said proceeding NBW were issued against the applicant herein. After the release of the applicant herein on bail on 10.01.2024 he was taken into custody in the proceedings under section 125(3) Cr.P.C. He continued in jail. In the said proceedings under section 125(3) Cr.P.C. the applicant herein moved an application on 16.01.2024, stating therein that since the applicant is having no movable and immovable property with him and all the properties are in possession of his in-laws and he is not having any pairokar for himself, therefore, legal aid be provided to him. The said application was rejected by the trial court vide order dated 16.01.2024 against which an application under section 482 Cr.P.C. No.13210 of 2024 was filed by the applicant herein. The said application was disposed of by a co- ordinate Bench of this Court directing the trial court to appoint Amicus Curiae for the applicant herein. Subsequent thereto an application under section 145 Cr.P.C. BNSS was filed on behalf of the applicant alongwith an application for condonation of delay. Vide impugned order dated 30.01.2025 the trial court has rejected the said application recording therein that the notices were issued to the applicant herein in the proceeding under section 125 Cr.P.C. which were received back with a note that the applicant has refused to accept the notice. Therefore, service of notice was found sufficient on the applicant herein in the proceedings under section 125 Cr.P.C. There is a categorical contradictions in the version with regard to service of notice on the applicant herein in the order dated 22.05.2023, wherein it is stated that the notice was duly served on the applicant, whereas in the impugned order dated 30.01.2025 it is observed by the trial court that notice was refused by the applicant. Therefore, the service of notice was presumed to be sufficient. In view thereof, as per the case of the applicant as noted herein above, there is sufficient explanation for condonation of delay on the part of the applicant herein. Therefore, in the considered opinion of this Court, the Family Court has erred in rejecting the application of the applicant under section 5 of Limitation Act vide order dated 30.01.2025. 4. Accordingly, said order dated 30.01.2025 is hereby set-aside. The delay in filing the application under section 145(2) BNSS is hereby condoned, in view of the categorical contradictions with regard to service of notice on the applicant herein. The application under section 145(2) BNSS of the applicant herein is allowed and the Family Court is directed to proceed in the matter and the order dated 22.05.2023 passed by the Principal Judge, Family Court is hereby set-aside. The Family Court is directed to proceed in the application under section 125 Cr.P.C. moved by the opposite party nos.2 and 3, afresh, after giving full opportunity of hearing to the applicant herein. Since the applicant is admittedly in jail since 09.10.2023 till date, therefore, in the considered opinion of this Court he cannot be said to having any income, thus the period from 09.10.2023 till his release from jail, he will not be liable to pay any maintenance to the opposite party nos.2 and 3. Since I have already set-aside the order dated 22.05.2023, therefore, all the subsequent proceedings are set at naught and the applicant herein shall be released from jail, subject to the condition imposed by the order dated 20.01.2024, passed in Case Crime No.99 of 2022, under sections 498-A, 323, 506, IPC and section 3/4 D.P. Act, whereby the applicant herein was directed to be released in the said proceedings on submissions of a personal bond of Rs.25,000/- and two sureties of the like amount to the satisfaction of the court concerned. While proceeding in the 125 Cr.P.C. proceeding, the Family Court shall consider all the defences of the applicant herein, specifically considering the provisions of second proviso of section 125(3) Cr.P.C. and section 125(4) Cr.P.C. 5. With the aforesaid observation, the instant application is hereby allowed. Order Date :- 28.7.2025 VKG (Anish Kumar Gupta,J.) Digitally signed by :- VIJAY KUMAR GUPTA High Court of Judicature at Allahabad