Maloy Biswas vs Shefali Biswas

A.B. Mukherjee, J.—These two revisional application are taken up together for analogous hearing since the arties are the same, and the question involved in both be matters though not same are dependent on each ther. In the Revisional Application No. 932 of 1995 an ex parte order dated March 21,1995 passed by Judicial Magistrate, 2nd Court, Murshidabad in case No. M.R. 112 of 1993 directing the present Petitioner to pay a maintenance allowance of a sum of Rs. 500 in the favour of O.P. No. 1 stated to be the wife is in issue.

The contention of the Petitioner is that the O.P. No. 1 claiming herself to the wife of the Petitioner filed an application u/s 125 Code of Criminal Procedure in he said Court for a sum of Rs. 500 as maintenance allowance per month on the ground that her husband was neglecting and also refusing to maintain her. The Petitioner appeared in that proceeding and contested the same denying the relationship as husband and wife. His specific objection is that the marriage did not take place between the parties.

It is also the specific case of the Petitioner that he filed a Civil Suit being O.S.155 of 1992 in the Court of Munsif, First Court, Murshidabad praying for a declaration that there was no relationship of husband and wife between the two and for consequential reliefs. He also filed an application before the Judicial Magistrate for stay of the proceeding u/s 125 of Code of Criminal Procedure till the decision of the other Suit. By an order dated January 19, 1993 the said prayer was allowed. The Petitioner was under the impression that the proceeding u/s 125 of Code of Criminal Procedure in view of the stay order of the Munsif is not continuing but all of a sudden on March 23, 1994 he got an information that an order of maintenance was passed in the proceeding u/s 125 of Code of Criminal Procedure by the Judicial Magistrate. After a thorough search he came to know that the O.P. No. 1 preferred a revisional application before the Session Judge against the order of the Judicial Magistrate date January 19, 1993, it was registered as Criminal Motio No. 97 of 1993. After admitting the Motion, the Session Judge directed to issue of notice on the O.P. an subsequently the case was transferred to the Court c Additional Sessions Judge. No notice was served on the present Petitioner and the revisional application was heard ex parte. By order dated December 21, 1994 the order of stay given by the Judicial Magistrate was se aside and a direction was given to dispose of the proceeding u/s 125 of Code of Criminal Procedure expeditiously preferably within a period of three (3 months. After the record was received by the Judicial Magistrate he fixed March 20, 1995 for hearing of the case when the O.P. No. 1 was examined ex parte and ar order of maintenance was passed on the next day. As such the Petitioner has challenged the order of the Judicial Magistrate and has prayed for setting aside the same.

In Criminal Revision No. 938 of 1995, the Petitioner in the earlier revisional application also figures as the Petitioner. In that order he has prayed for setting aside the order dated December 21, 1994 passed by the Sessions -Judge by which he set aside the order of the Judicial Magistrate staying further proceeding of the case u/s 125 Code of Criminal Procedure and directing the same to be disposed of expeditiously preferably within three (3) months. The said revisional application was filed after the expiry of the limitation period and there has been a delay of 63 days in filing the revisional application. In that proceeding also the O.P. No. 1 entered appearance through learned Advocate and the matter regarding limitation was also heard on the self-same day. The prayer for condonation of delay was not seriously resisted. In view of the circumstance, which will be explained presently the delay is condoned and that revisional application has also been heard together.

Both the records, namely, the record of the revisional application before the Sessions Judge being No. 97 of 1993 and the record of the proceeding u/s 125 of Code of Criminal Procedure being M.R. Case No. 212 of 1993 were called for and both the records have been received. On a scrutiny of the same it appears that the present Petitioner appeared in the proceeding u/s 125 of Code of Criminal Procedure. He also filed an application for stay of the said proceeding till being decision of the Civil Suit started by him and the said prayer was also allowed by the Judicial Magistrate by an order dated January 19, 1993. It appears from the record of Criminal Motion No. 97 of 1993 that there was direction of issuance of notice on the O.P.s by the Sessions Judge on April 3, 1993 when it was admitted.

It appears from Order No. 3 dated July 15, 1993 that there was no service return of the notice issued pursuant to the earlier direction. But the learned Sessions Judge erroneously held that O.P. No. 1 had already entered appearance and that he had also filed a vakalatnama. Acting under this belief he fixed a date for hearing of the Motion. As a matter of fact O.P. No. 1 happens to be the State of West Bengal whereas the present Petitioner was O.P. No. 2. As such the learned Sessions Judge acted erroneously that notice was properly served on the present Petitioner and he also appeared by filing vakalatnama. Accordingly, he heard the matter and disposed of the same with the direction already stated. The Judicial Magistrate on getting the said order fixed a date for evidence without issuing any further notice on the present Petitioner. Accordingly, the present Petitioner who was absolutely ignorant of the fact of the revisional application, as also the order passed therein did not enter appearance and accordingly the proceeding u/s 125 of Code of Criminal Procedure was heard ex parte and an order of maintenance was passed in favour of O.P. No. 1 Therefore, for ends of justice the inherent power vested in this Court need be exercised to set the matter at right and the ex parte order of maintenance cannot stand in the facts and circumstances of the case.

Regarding the revisional application being No. 935 of 1995 the learned Advocate appearing for the Petitioner concedes in his usual fairness that the order passed by the learned Judicial Magistrate staying further proceeding u/s 125 of Code of Criminal Procedure till decision of the other suit started by the present Petitioner in a Civil Court is not in accordance with law. He concedes that a proceeding u/s 125 of Code of Criminal Procedure is a summery procedure which has been enacted to come in aid of a neglected wife cannot remain stay for an indefinite period till the decision of Civil Suit touching on the point of the relationship between the parties. Accordingly, the prayer contained in the revisional application being No. 935 of 1995 can not be allowed.

In the result the revisional application being No. 932 of 1995 stands allowed on contest. The impugned order of the learned Judicial Magistrate dated March 21, 1995 in M.R. Case No. 212 of 1993 stands set aside. The learned Magistrate is directed to hear the matter afresh after giving the reasonable opportunity to both the parties to adduce evidence. He shall, however, disposed of the proceeding as expeditiously as possible and in any case within a period of six (6) months from the date of communication of this order. The revisional application being No. 935 of 1995 stands dismissed on contest. This judgment shall govern both the revisional applications.