CALCUTTA HIGH COURT
Bench: JUSTICE Sadhan Kumar Gupta
CHAITALI DEY ANR. On 11 May 2006
The judgment of the Court was as follows :
This revisional application has been preferred against the order dated 22.12.2004 passed under Section 125, Cr.P.C. in Misc. Case No. 116 of 2004 by the Judge, Family Court, Kolkata. Case of the petitioner is that O.P. No. 1 is his legally married wife. But soon after the marriage trouble started in between them and finally the O.P. No. 1 left the marital home on 4.8.2003 and since then she is staying at her paternal house. The O.P/wife filed a criminal case against the petitioner and his family members. Subsequently on 30.7.2004 she filed an application under Section 125, Cr.P.C., against the petitioner in the Family Court, Kolkata praying for maintenance. The learned Court below fixed 14.9.2004 for the petitioner to file show cause as to why the prayer for maintenance and ad interim maintenance would not be allowed. However, no process was served upon the petitioner. Inspite of that, the learned Judge fixed 4.11.2004 for ex parte hearing and on that day in absence of the petitioner, examined the opposite party as witness and allowed the prayer for interim maintenance to the extent of Rs. 3,000 per month and Rs. 10,000 towards litigation cost. By the said order he also fixed 20.12.2004 for ex parte hearing of the application filed under Section 125, Cr.P.C. On 22.12.2004 the case was allowed ex parte in favour of the O.P/wife and the learned Judge directed the petitioner/husband to pay Rs. 3,000 per month to his wife towards maintenance and to pay a litigation cost of Rs. 10,000. According to the petitioner the impugned order, as passed by the Court below, suffers from material illegality. There was no mention whatsoever in the order of the learned Judge that the petitioner was intentionally evading the appearance in the Court below. The petitioner has further claimed that the learned Judge, before passing the impugned order did not apply his judicial mind at all and whimsically and mechanically allowed the prayer for maintenance in favour of the wife. He has further claimed that his monthly income does not exceed Rs. 3,000 and the learned Judge was not justified in relying upon the statement made by the wife regarding the alleged fabulous income of the petitioner/husband. No reason whatsoever was assigned to the amount of litigation cost of Rs. 10,000, as passed in favour of the wife. Being aggrieved by the impugned order, as passed by the learned Court below against him, the petitioner/husband has preferred this revisional application on the ground that the order, as passed by the Court below suffers from material illegality and without any basis whatsoever and as it has caused failure of justice, so this Court, in exercise of its power under Section 482, Cr.P.C. should intervene into the matter.
2. Learned Advocate for the O.P./ wife on the other hand submits that the impugned order, as passed by the learned Court below is perfectly justified and although the petitioner/husband was aware of the proceeding, still as he did not take any step so the learned Court below was justified in proceeding ex parte against the petitioner/husband. According to him, as there is no illegality in the said order, so there is no scope for interference by this Court. He further argued that there is remedy provided in Section 126, Cr.P.C. for setting aside the ex parte order and without invoking such jurisdiction it is not permissible for the petitioner to come directly to the High Court for setting aside the impugned order. In this respect, he has cited decision in Municipal Corporation of Delhi v. Ram Kishan Rohtagi Ors., AIR 1983 SC 67.
3. I have heard the submissions of the learned Advocates for both the sides and also perused the orders as passed by the learned Court below. So far as the decision reported in AIR 1983 SC 67, (supra) is concerned it appears that the said decision was passed in a case filed as per provisions of Prevention of Food Adulteration Act when a prayer for quashing of the criminal proceeding was made before the High Court. It has been held in the said decision that inherent powers under Section 482 of the Cr.P.C. can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided in the statute. There cannot be any dispute regarding the legal principle as enunciated by the Apex Court. But so far as the present case is concerned, it appears that it is a proceeding filed under Section 125, Cr.P.C. This Section 125, Cr.P.C, has been introduced in the statute only to provide maintenance to the deserving persons and in order to prevent vagrancy. Of course there is provision in Section 126, Cr.P.C. for setting aside the ex parte order of the Court concerned by showing sufficient reasons, but at the same time we must not forget that the very basis of the order, as passed by the learned Court below is under challenge before this Court.
It has been alleged by the husband that the learned Court below mechanically and whimsically passed the ex parte order both in respect of interim and final maintenance in favour of the wife. Learned Advocate for the petitioner, in support of this contention has relied upon the decisions in Balan Nair v. Bhavani Amma Valsalamma Ors., AIR 1987 Ker. 110; Sunil Kumar Sabharwal v. Mrs. Neelam Sabharwal Ors., I (1991) DMC 547 (DB)=1991 Cr.LJ 2056; and S. Bhupinder Singh Makkar v. Narinder Kaur Ors., II (1990) DMC 214=1990 Cr.LJ 2265. I have considered all those decisions and the submissions of the learned Advocates for both the sides. I have already pointed out that this petition has been filed as per provisions of Section 482, Cr.P.C. It is the admitted position that High Court will not hesitate to intervene into an order where there is manifest error on the face of the order itself and when it appears clearly to the High Court that the order in question has caused failure of justice. Undoubtedly the petitioner could move the Court below for setting aside the ex parte order. But that does not mean that the petitioner will be debarred from drawing attention of this Court in order to show that the order of the learned Court below has actually caused failure of justice. Keeping this position in mind, let us now see whether it will be fair and proper for this Court to intervene into the order as passed by the learned Court below. If we look into the provisions of Section 125, Cr.P.C. then it will appear that before proceeding ex parte it is the duty of the Court to come to a definite finding that the husband was intentionally avoiding the said proceeding by not appearing before the Court. But if we look into the copy of the orders, as passed by the Court below, then it will appear that nowhere it has been mentioned in those orders that the husband was avoiding the said proceeding intentionally. True it is that on 14.9.2004 the learned Court below observed— “Mr. Saikat Kundu appearing for the O.P. has submitted that Saibal Dey is out of station. Therefore, he cannot appear today.
In the circumstances the O.P is aware of the case. With this observation, the learned Court below directed that the wife need not take any step for service of notice upon the husband. But the order dated 14.9.2004 does not disclose who is this Mr. Saikat Kundu. The learned Court also did not observe as to whether this Saikat Kundu had any authority to appear for the husband. It is also not clear from the order as to whether Mr. Kundu is a practising Advocate of the Court below or not. In fact, the order dated 14.9.2004 is full of ambiguity and cannot be of any help for the O.P/wife. It further appears that on 7.10.2004 as the petitioner/husband was found absent, so the learned Magistrate fixed next date for ex parte hearing. Nowhere it has been stated in that order sheet that the learned Court below was satisfied that the husband was evading the said criminal proceeding. In absence of such a clear finding of the Court below, I am afraid that it was not permissible for the said Court to proceed with the matter ex parte. Under such circumstances, I have got no hesitation to hold that the ex parte order as passed by the Court below against the husband suffers from material irregularity. I have also considered the order, as passed by the learned Court below allowing maintenance in favour of the wife. It appears that while granting the prayer for interim maintenance the learned Court allowed Rs. 3,000 per month in favour of the wife towards her maintenance and Rs. 10,000 towards litigation cost. Same amount was awarded in favour of the wife while disposing of the petition under Section 125, Cr.P.C. finally. From the record, it appears that there is practically no basis of this finding of the learned Court below. He simply relied upon the oral statement of the wife to the effect that the husband was earning about Rs. 40,000 per month. There is no dispute that even in an ex parte order it is the duty of the Court to give proper reasoning as to why such a fabulous amount of maintenance as well as litigation cost was awarded in favour of the wife although there is no substantive evidence in support of the claim of the income of the husband. The order of the Court below in this respect, appears to me to be very much whimsical and without any basis whatsoever. Under such circumstances, I think that this order, as passed by the learned Court below, has certainly caused failure of justice and in my considered opinion said order should immediately be set aside by way of intervention by this Court and appropriate direction should be passed for considering the case of the respective parties in proper perspective by giving opportunities to them to adduce evidence and in the meantime adequate provision should be made to provide sufficient interim maintenance and litigation cost in favour of the wife keeping in mind, the scheme, as formulated by the Legislature while enacting the provision of Section 125, Cr.P.C. in the statute book. To my mind, it will be proper and fair if the ex parte order is set aside and the learned Court is directed to dispose of the matter at a very early date and in the mean time I think that an amount of Rs. 2,000 per month should be awarded in favour of the wife towards her interim maintenance and a further sum of Rs. 2,500 should also be awarded in her favour towards litigation cost so that she can effectively contest the proceeding.
4. In the result, the revisional application succeeds on contest. The order dated 22.12.2004 passed under Section 125, Cr.P.C in Misc. Case No. 116 of 2004 by the learned Trial Judge, Family Court, Kolkata is set aside. The matter is sent back on remand to the Court below with the direction that he will dispose of the said maintenance proceeding within a period of three months from the date of the filing written objection by the husband who is directed to file such written objection within a period of one month from the date of this order, failing which the learned Court below will be at liberty to proceed with the matter ex parte against the husband and to dispose of the application filed under Section 125, Cr.P.C. by recording the evidence on behalf of the wife and he will be at liberty to pass a reasoned order thereafter. The husband is directed to pay Rs. 2,000 per month towards interim maintenance in favour of the wife and Rs. 2,500 in her favour towards litigation cost. This order of interim maintenance will be effective from December, 2004. The husband is directed to pay the arrear maintenance and the current amount of maintenance along with the litigation cost within two months from this day. However I make it very clear that this period for payment of maintenance will in no way extend the period which has been mentioned earlier for disposal of the main maintenance application. I also make it very clear that the learned Court below will dispose of the main maintenance application independently on the basis of the materials available before him without being influenced in anyway by any observation that might have been made by this Court in this revisional application.
5. Send a copy of this order to the Court below immediately for information and taking necessary action.
Revision application allowed..