Maintenance u/s 125 of cr. p. c. (order behind the back)
mohanlal
(Querist) 18 September 2013
This query is : Resolved
• A case of maintenance is pending (execution of Order is pending) in a family court in which I am the respondents (Husband and father of a son).
• I have submitted the Written Statements (WS) in the matter.
• Thereafter on the date fixed for prosecution evidence, I could not participate in the proceedings because the Advocate who was assisting me for the case misled me and told me that they have taken adjournment and they will communicate me the next date later on.
• In the meanwhile the date was fixed for defence witness and then argument was also elapsed and consequently an ex parte order was passed.
• Thereafter the Order was sent to my department where I was working (at present I have not reported to duty because of some officials issues which are pending in the Central Administrative Tribunal).
• Thereafter the Department returned back the Order to the court saying that since he has not reported on duty and not getting any salary therefore we are unable to act on this Order.
• In the meanwhile I came to know about this ex parte Order and I approached the Family Court.
• I met with the Principal Judge and she told me that you can file an application for setting aside of the ex parte Order and seeking restoration of proceedings.
• I also came to know that a date (fifteen days from now) has been fixed for execution of the Order by a warrant against me for recovery of the arrears and the maintenance.
• Now I am unable to obtained certified copy of the Order and other relevant documents of the case as the clerk saying that he will give after fifteen days due to lack of man power. Even they are not willing to give the urgent copy with additional charges prescribed.
Queries:-
(i) Whether the application for setting aside the said ex parte Order and seeking restoration is maintainable in the same court as once the Order has been passed but execution of the Order is pending;
(ii) How to get the certified copy of the case to enable me to resort to the next remedy available.
(iii) Any Other Advice/Suggestions?
Dr. Jyothi Vishwanath
(Expert) 18 September 2013
i. yes application for setting aside to be filed in the same court which passed the exparte order.
ii. submit copy application in the court. Limitation period for filing restoration period will stop running.
iii. You said department informed the court that you are not on duty for the time being and not getting salary. this point will work in your favour.
Be cool and change advocate first.
mohanlal
(Querist) 18 September 2013
Further details:
The Complainant, despite of well knowledge about the fact that I have not joined duty and I am not withdrawing any salary, deliberately concealed this fact in the court and pressed and obtained the ex parte Order of maintenance in her favour.
Dr. Jyothi Vishwanath
(Expert) 18 September 2013
The conduct of complainant can be brought to the notice of the court. But difficult to prove that complainant had knowledge...
Raj Kumar Makkad
(Expert) 18 September 2013
Well advised by experts so no more to reply.
R.K Nanda
(Expert) 18 September 2013
nothing to add more.
Rajendra K Goyal
(Expert) 18 September 2013
Agree with the expert Dr. Jyothi Vishwanath ji.
Rajendra K Goyal
(Expert) 18 September 2013
Agree with the expert Dr. Jyothi Vishwanath ji.
Nadeem Qureshi
(Expert) 19 September 2013
Dear Querist
my opinion on your queries as under:
i) Whether the application for setting aside the said ex parte Order and seeking restoration is maintainable in the same court as once the Order has been passed but execution of the Order is pending;
Opinion: file an application u/s 126 of Cr.PC along with stay order.
(ii) How to get the certified copy of the case to enable me to resort to the next remedy available.
Opinion: file an application before coping department of the court with the fee.
