GAURAV PRAMOD DIXIT Vs. GITALI GAURAV DIXIT

JUDGEMENT

(1.) Submissions of the learned counsel appearing for the parties were fully heard on 14th August 2008.

(2.) With a view to appreciate submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. The marriage between the petitioner and 1st respondent was solemnised on 27th November 2003. An application was filed by the 1st respondent wife under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code) for grant of monthly maintenance at the rate of Rs.3,000/- per month for herself and for minor daughter i.e the 2nd respondent.

(3.) The learned counsel appearing for the petitioner submitted that the main grievance of the petitioner was that he was not served with a notice of the application made under section 125 of the said Code. He invited my attention to the relevant discussion in the judgment of the learned Sessions Judge on this aspect. He pointed out that in paragraph 6 of the judgment, the learned Additional Sessions Judge has referred to remedy available to the petitioner under sub section 2 of section 126 of the said Code. He submitted that a after holding that a remedy was available to the petitioner, the learned Judge however proceeded to decide the revision application on merits. He submitted that if learned Judge was of the view that a remedy was available under section 126(2) of the said Code, the learned Judge ought to have disposed of the revision by permitting the petitioner to adopt the remedy. He pointed out that the learned Judge has on merits confirmed the finding recorded by the learned Magistrate as regards entitlement of the 1st and 2nd respondents to maintenance and therefore, now the remedy of approaching the trial Court by an application under section 126(2) of the said Code is no longer available. He submitted that the learned Judge has committed an error by directing the petitioner to pay total maintenance of Rs.1,400/- per month and that also from the date of application. The learned counsel appearing for the 1st respondent supported the impugned judgment and order.