ABDUL RASID Vs. SAHNAZ

JUDGEMENT

(1.) Aggrieved by the judgment dated 19.9.2005 passed by Judge, Family Court, Udaipur, whereby the learned judge has directed the petitioner to pay a maintenance of Rs. 1,000.00 per month, from the date of passing of the order, to the respondent wife, the petitioner has approached this Court.

(2.) The learned counsel for the petitioner has vehemently contended that the said order was passed ex parte order. In fact, the notice was never served upon the petitioner. Thus, he had no knowledge that the said order has been passed. It is only when the respondent wife moved a revision petition before this Court, seeking enhancement of the maintenance, that after receiving the notice in that case, he realised that an ex parte order has been passed against him. Immediately he filed an application before the learned Family Court for setting aside the ex parte order. However, vide order dated 25.2.2008, the said application was dismissed. Thus, according to the learned counsel, a grave illegality has been committed against the petitioner as the order has been passed without giving an opportunity of hearing to him. Secondly, that the respondent wife has not been able to prove the fact that he is earning Rs. 10,000.00 to Rs. 12,000/by working as a contractor for gardens. Despite this fact still the learned Judge has believed the witnesses produced by the respondent wife, and has directed the petitioner to pay Rs. 1,000.00 per month to her.

(3.) On the other hand, Mr. Shrimalee, learned counsel for respondent wife, has contended that throughout the proceedings before the Family Court, the petitioner had been sleeping over his rights. According to the impugned judgment, the notice was duly served upon the petitioner. Yet, he chose not to participate in the judicial proceedings. Therefore, the learned Judge had no option, but to proceed ex parte. Even after filing the application for setting aside the ex parte order, the petitioner appeared before the learned Judge as long as the stay was not granted by this Court. However, when the stay was granted by this Court, vide order dated 20.11.2007, subsequently, the petitioner stopped attending the Family Court. Thus, the Family Court had no option but to dismiss the application in default. Moreover, once the said application has been dismissed, the petitioner has not bothered to challenge the order dated 25.2.2008. Therefore, the said order has achieved finality. The petitioner has taken this Court for a ride by concealing the fact from this Court that he had already filed an application for setting aside ex parte judgment. Hence, according to the learned counsel for respondent, petitioner has not approached this Court with clean hands. Therefore, the petition deserves to be dismissed on this ground alone. Secondly, that the learned Judge has noted the fact that Mohd. Ishaq (AW- 3) happens to be a friend of the petitioner, who has clearly stated about the income being earned by the petitioner. Since the petitioner was earning anywhere between Rs. 10,000.00 to Rs. 12,000.00, the learned judge has granted a maintenance of Rs. 1,000.00 per month to the respondent wife. The learned counsel has further pleaded that since the respondent wife is aggrieved by the meager amount of maintenance, she has already filed a revision petition for enhancement of the same. Thus, the learned counsel has supported the impugned judgment.