DINESH KUMAR Vs. RAJKUMARI

JUDGEMENT

(1.) Aggrieved by the order dated 02.04.2009, passed by the learned Judge, Family Court, Jodhpur, whereby the learned Judge has dismissed the petitioner's application under Section 126(2) Cr.P.C., the petitionerhusband has approached this Court. Mr. Haider Agha, the learned counsel for the petitioner-husband, has vehemently contended that the petitioner-husband happens to be a resident of Beawar. However, in the application filed by the respondent-wife under Section 125 Cr.P.C. his address was shown as one in Mumbai. Therefore, the notice was never served upon him. Hence, he was not in a position to contest the application. Therefore, an ex-parte order was passed against him. He came to no about the ex-parte order only on 07.01.2005, when he came to Jodhpur to contest the criminal case pending against him for offence under Section 498A IPC. Immediately thereafter he filed an application under Section 126(2) Cr.P.C. Secondly, without giving an opportunity of hearing, ex-parte order has been passed. Therefore, injustice is being done to him. Thirdly, the learned Judge has erred in dismissing his application under Section 126(2) Cr.P.C on the ground of delay in filing the same. Lastly, the learned Judge has erred in observing that in case the petitioner-husband is aggrieved by the high rate of maintenance, he can file an application under Section 127 Cr.P.C.

(2.) Heard the learned counsel for the petitioner and perused the impugned order.

(3.) A bare perusal of the impugned order clearly reveals that after going through the record of the case, the learned Judge has concluded that the notice was, in fact, served upon the petitioner-husband himself on 03.12.2003. Thereafter, the petitioner-husband chose not to contest the case. Therefore, the petitioner-husband cannot possibly contend before this Court that the notice was not served upon him. If the petitioner-husband was of the opinion that his signatures on the notice were forged, he could have filed an application, and could have challenged the authenticity of the signatures. Yet, he has not done so. Therefore, he cannot be permitted to now challenge the authenticity of the signatures on the notice. Once a notice has been served and still the person prefers to keep away from the proceeding of the court, he cannot raise the contention that an opportunity of hearing has been denied to him. After all, an opportunity was granted, yet, he chose not to avail of the opportunity. Hence, the contention that his rights under the principles of natural justice are being denied is misplaced.