Neutral Citation No. - 2025:AHC:34557 Court No. - 80 Case :- CRIMINAL REVISION No. - 5068 of 2024 Revisionist :- Himanshu Singhal Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Abhai Singh,Virendra Singh Counsel for Opposite Party :- G.A. Hon'ble Ram Manohar Narayan Mishra,J. 1. As per office report, notice has been served upon opposite party but none appeared on his behalf to press the present revision. 2. Heard learned counsel for the revisionist, learned AGA for the State and perused the material available on record. 3. Instant criminal revision has been preferred against judgement and order dated 2.8.2024 passed by learned Principal Family Court Hathras in Misc. Case No. 10 of 2024 and ex-parte judgement and order dated 9.1.2024 passed by court concerned in maintenance case no. 521 of 2024 under section 125 Cr.P.C. By the impugned order dated 2.8.2024 learned court below dismissed the application under section 126(2) Cr.P.C. filed by the opposite party in maintenance case No. 521 of 2024 whereby Rs. 6000/- per month maintenance was awarded to applicant no. 1 who is his wife and Rs. 5000/- to his minor son, the applicant no. 2 . 4. Learned counsel for the revisionist submitted that revisionist was opposite party in maintenance case no. 521 of 2022 and said maintenance case was decided against him ex-parte by learned court below whereby he has been directed to pay Rs. 11,000/- per month as maintenance to the wife and his minor son. He next submitted that the applicant had filed an application under section 126(2) Cr.P.C. for restoration of said maintenance case and setting aside the ex-parte judgement and order dated 9.1.2024 and regarding ex-parte proceedings dated 24.8.2023. 5. The revisionist had taken a specific plea in application under section 126(2) Cr.P.C. that he received no notice and information from the Court regarding said maintenance case. He was living outside of his home at the time of issuance of notice in said maintenance case. He reached at Hathras on 30.1.2024 and he came to know that applicant no. 1 (Lavely Agrawal) had procured ex-parte judgement and order dated 9.1.2024. The revisionist has sought an opportunity of hearing in said maintenance case and prayed for setting aside ex-parte judgement and order but in spite of pressing the grounds taken in said restoration application, learned court below had dismissed the application under section 126(2) Cr.P.C. only on the ground that applicant Himanshu Agrawal has filed two affidavits on that date in the Court, one in compliance of Hon'ble Apex Court's directions related to maintenance cases wherein he has shown himself educated upto M.A., a labourer and shown his income as Rs. 12,000/- per month but in another affidavit he has shown his income Rs. 500/- per day by working as labourer somewherein in Delhi, therefore, it is clear that the applicant has not come to the Court with clean hand. He simply wants to misuse the process of Court in the name of filing of application under section 126(2) Cr.P.C., only to avoid his bounden duty to pay maintenance allowance to his wife and his minor child and to scuttle down the soul and spirit of a judgment, titled as Rajesh Babu Saxena vs. State of U.P. and another in Criminal Revision Defective No. 1789 of 2023 decided on 13.2.2024. 6. Learned counsel for the revisionist further submitted that the difference of Rs. 50 in different affidavit was only due to fact that revisionist works as labourer and some time he gets job Rs. 450 and some time Rs. 500 per day. In as much as the difference of Rs. 50 is not very substantial and on that account, the observation of learned court below that the revisionist has not come before court with clean hand is neither reasonable nor logical. Learned court below has not considered the main question involved in said restoration application that whether notice was duly served upon him regarding filing of said maintenance case by the applicant Lavely Agrawal or not. 7. Per contra, learned AGA for the State submitted that the impugned order is supported with cogent reason and there is no illegality in the impugned order. 8. Considering rival submissions of learned counsel for the parties and giving thoughtful consideration to material on record including the impugned order as well as judgement and order dated 9.1.2024 passed by learned Principal Judge Family Court wherein it is observed that "notices were sent to the opponent but he did not bother to appear and defend this case..." 9. I find farce in submissions of learned counsel for revisionist that the learned court below has not even considered the question as to whether notice issued by the Court in said maintenance case No. 521 of 2022 was duly served upon him or not as claimed by the applicant.There is no submissions made by learned counsel for the revisionist that only due to defference of meager amount of Rs. 50 with regard to daily earning of revisionist in two affidavits filed by him it cannot be held that he did not come before the court in clean hand. 10. Consequently, the impugned order is not sustainable as it is vitiated by legal error and deserves to be set aside. 11. The impugned order dated 2.8.2024 is set aside and matter is remanded to the learned trial court for decision afresh on application under section 126(2) Cr.P.C. in accordance with law. Learned court below will give clear finding regarding service of notice to revisionist who is opposite party in maintenance case no. 521 of 2022. It need not be mentioned that learned court below will pass proper order on said application after giving opportunity of hearing to both sides, expeditiously. 12. The present criminal revision is allowed. Order Date :- 10.3.2025 SY Digitally signed by :- SUSHAMA YADAV High Court of Judicature at Allahabad