KALBE MEHNDI Vs. STATE OF U P

JUDGEMENT

(1.) SHIV Charan, J. Heard learned Counsel for the revisionist and perused the impugned judgment and order dated 21. 2. 2008 passed by Principal Judge Family Court, Meerut in Misc. Case No. 216 o-2007 (Kalbe Mehndi v. Tasneem Zehra ). By this order the learned Judge dismissed the application of the revisionist for restoration of the Case No. 150 of 2004, under section 125. Cr. P. C.

(2.) THE learned Counsel for the revi sionist argued that a petition under section 125 Cr. P. C. was instituted by the opposite party for maintenance and it was num bered as 150 of 2004 (Tasneem Zehra v. Kalbe Mehndi ). That no notice was served on the revisionist of this petition under section 125, Cr. P. C. He also argued that he has filed prior to copy of the order sheet of Case No. 150 of 2004 and by the order dated 1. 4. 2006, the Family Judge presumed sufficient service on the revisionist by a fixation of the notice, as the revisionist re fused to receive the notice. He argued that the fact is that he received no notice. He never refused to process server to receive the notice. And ultimately ex-parte order of maintenance was passed or, 25. 5. 2007. That after knowing this fact without wasting any time he moved the application for setting aside the ex-parte order and the restoration of the case. He also argued that the oppo site party concealing the material fact from the Court in view of the Annexure-1 the revisionist divorced the opposite party on 1. 5. 2006. THE certificate was issued to this effect by Moulana Ali Ibnul Hasan Banqri and that he is competent to issue the certificate of divorce. That after divorce the revi sionist is not bound and liable to pay the maintenance. Rather the case must be cov ered under the provision of Muslim Women (Protection of Rights on Divorce) Act, 1986. And he cited the judgment of Hon'ble Apex Court in Iqbal Bano v. State of U. P. and others. 2007 (58) ACC 824 (SC) = 2007 (55) AIC 4 (SC ). He also argued that in view of the judgment of this Court also the petition under section 125 Cr. P. C. must be decided on merits.

(3.) CONSIDERING all the facts and cir cumstances, of the case I am of the opinion that the petition under section 125 Cr. P. C. was decided ex parte and the service to the revisionist was not personal. Rather service was presumed on the basis of fixation of notice on refusal. It appears that the learned Judge has not considered all the facts and circumstances of the case prop erly while deciding the application for restoration. There was sufficient reason. Such circumstance to set aside the ex-parte judgment. However in the interest of justice and to safeguard the interest of the parties it is proper that the case must be decided on merits. Under these circumstances, the re vision deserves to be allowed and the ex- parte order dated 25. 5. 2007 deserves to be set aside. And the matter is to be remanded to the Judge Family Court for deciding afresh on merit after affording an oppor tunity to both the parties to produce evi dence and W. S. also.