AJAI KUMAR VERMA Vs. MALTI VERMA

JUDGEMENT

(1.) - By means of this revision the revisionist has challenged the order dated 2.1.1993 passed by the Principal Judge, Family Court, Lucknow Criminal Case No. 567 of 1992 under Sec. 125 Criminal Procedure Code The facts may be briefly stated as under :

(2.) Opposite party No. 1, namely Srimati Malti Verma, and her minor daughters, Kumari Neha, Kuamri Swati and Kumari Ankita, moved an application under Sec. 125 of the Code of Criminal Procedure for maintenance against the revisionist who is the husband of Srimati Malti Verma. The learned Principal Judge, Family Court, Lucknow sent a notice to the revisionist- husband by means of registered post and this registered post was returned with the endorsement of refusal. The service of the notice upon the revisionist was deemed to be sufficient and the Family Court decided to proceed ex parte. Against this order the revisionist has come up in this revision.

(3.) Learned Counsel for the parties have been heard. Learned Counsel for the revisionist has passed this revision on two points. The first point is that the service effected by registered post is not the mode prescribed by the Code of Criminal Procedure and as such this service cannot be deemed to be a proper service. The other point is that affidavit was taken by the Family Court in place of statement of opposite party No. 1 and after placing reliance on the affidavit the ex parte order has been passed. A perusal of Sec. 125 of the Code of Criminal Procedure will go to show that an application for maintenance of wife, children and parents is maintainable on one of the four grounds mentioned in this Section. Therefore he Magistrate has to proceed upon proof of such neglect or refusal, and order such person to make a monthly allowance for the maintenance of his wife, children or parents. The mode of service has not been indicated in this Sec. but Chapter VI of he Code of Criminal Procedure starting from Sec. 61 provides for procedure to compel appearance. Under Sec. 61 a summons has to be sent by the Court for service. Sec. 62 provides for procedure for service of summons by a police officer and the summons has to be served personally on the person summoned by delivering or tendering to him are the duplicates of the summons. Sec. 64, provides a mode of service when the person summoned cannot be found. It is mentioned in this Sec. that where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicate for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefore on the back of the other duplicate. Sec. 65 provide that if service cannot by the exercise of due diligence be effected as provided in Sections 62, 63 or 64, the serving officer shall affix one of the duplicates of he summons to some conspicuous part of the house or homestead in which the person summoned ordinarily reside; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summon has been served or order fresh service in such manner as it considers proper. There is no provision in this Chapter for substituted service either by means of registered post or by publication in the newspaper. These modes of service i.e. by registered post or by publication in the newspaper are not recognised by the Code of Criminal Procedure although such a service is possible under the Code of Civil Procedure. As the proceedings have been taken under Sec. 125 of the Code of Criminal Procedure therefore the service of summons has also to be effected according to the provisions of service contained in the Code of Criminal Procedure. Therefore, it is apparent that the service which has been effected by means of registered post cannot be said to be in accordance with the provisions of the said Code.