Narain Lal vs Praveen Kumar

H.R. Panwar, J.—By the instant criminal misc. petition u/s 482 CrPC, the order dt. 18.01.2008 passed by Additional Sessions Judge, Bali Camp Sumerpur (for short "the revisional Court" hereinafter) and the order dt. 16.09.2005 passed by judicial Magistrate, Sumerpur (for short "the trial Court" hereinafter) have been challenged.

I have heard learned Counsel for the petitioner 3. It is contended by learned Counsel for the petitioner that the date of birth of respondent Praveen Kumar is 06.07.1987 and as on 05.07.2005 he has attained the age of majority and is not entitled for maintenance.

On an application filed by the respondent u/s 127 CrPC, by order dt. 16.09.2005 the trial Court enhanced the monthly allowance of maintenance from Rs. 400/- to Rs. 600/- w.e.f. 16.09.2005. According to learned Counsel for the petitioner, on 16.09.2005. According to learned Counsel for the petitioner, on 16.09.2005 the respondents had already attained the majority as he was more than 18 years of age and thus is not entitiled for any maintenance much less enhanced maintained. On a revision by respondent, the revisional Court further enhanced the monthly allowance of maintenance from Rs. 600/- to Rs. 1000/-.

Notice of this petition has been served on the respondent, but despite service of notice, no one appears for the respondent.

It appears that the order passed by the revisional Court was ex parte. Learned Counsel for the petitioner has shown me the copy of dt. 24.04.1997 by which the original application filed by respondent Praveen Kumar and his mother Smt. Divali against the petitioner u/s 125 CrPC came to be decided by the order of Judicial Magistrate, Sumerpur. In that order, the averments contained in the application u/s 125 CrPC came to be reproduced. From the perusal of the order dt. 24.04.1997 it appears that the application for monthly allowance came to be filed by Smt. Divali and present respondent Praveen Kumar jointly seeking maintenance stating that the marriage of Divali was solemnized six years ago and from the wedlock, son Praveen Kumar born and at the relevant time, he was two and half years of age. The date of birth respondent as stated by the petitioner is almost nearby the age stated in the application filed for maintenance u/s 125 CrPC. In the circumstances, therefore, both the Courts below failed to consider as to whether on the relevant date of the order, the respondent was major or not and if he has attained the majority as to whether he is entitled for maintenance on attaining the age of 18 years. In this view of the matter, the orders impugned are liable to be set aside and matter was deserves to be remanded back to the trial Court.

Consequently, the criminal misc. petition is allowed. The orders impugned passed by the trial Court dt. 16.09.2005 and the revisional Court dt. 18.01.2008 are herby set aside and the matter is remanded to the judicial Magistrate, Sumerpur to decided the application filed by the respondent u/s 127 CrPC afresh after affording an opportunity of hearing to the respondent.